AMENDED & RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.16
AMENDED & RESTATED EMPLOYMENT AGREEMENT
This Amended & Restated Employment Agreement (“Agreement”) is entered into December
31, 2008, but is effective as of January 1, 2008 (the “Effective Date”), by and between The
Xxxx Group Inc., a Louisiana corporation (collectively with its affiliates and subsidiaries
hereinafter referred to as, the “Company”), and Xxx Xxxxxx (“Employee”). The
Company and Employee may hereinafter be referred to, individually, as a “Party” and,
collectively, as the “Parties”.
WHEREAS, the Company and Employee are parties to that certain Employment Agreement dated as of
July 4, 2007 (the “Original Agreement”); and
WHEREAS, the Company and Employee desire to amend certain provisions of the Original Agreement
and to restate the Original Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and
agreements contained herein, and for other valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties agree as follows:
1. Employment. The Company hereby continues its employment of Employee, and Employee
hereby agrees to continued employment by the Company, on the terms and conditions set forth in this
Agreement.
2. Term of Employment. Subject to the provisions for earlier termination provided in
this Agreement, the term of this Agreement (the “Term”) shall be two years commencing on
the Effective Date and shall be automatically renewed on each day following the Effective Date so
that on any given day the unexpired portion of the Term shall be two years. Notwithstanding the
foregoing
provision, at any time after the Effective Date, the Company or Employee may give
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written
notice to the other Party that the Term shall not be further renewed from and after a subsequent
date specified in such notice (the “fixed term date”), in which event the Term shall become
fixed, and this Agreement shall terminate on the second anniversary of such fixed term date.
3. Employee’s Duties.
(a) During the Term, Employee shall serve as the President of the Energy & Chemicals Group of
the Company, or such other similar position(s) as the Parties may mutually agree, with such duties
and responsibilities as may from time to time be assigned to him by the Board of Directors of the
Company (the “Board”) or the Chief Executive Officer of the Company, provided that such
duties and responsibilities are comparable to the customary duties and responsibilities of such
position(s).
(b) Employee agrees to devote Employee’s full attention and time during normal business hours
to the business and affairs of the Company and to use reasonable best efforts to perform faithfully
and efficiently Employee’s duties and responsibilities. Employee shall not, either directly or
indirectly, enter into any business or employment with or for any Person (defined below) other than
the Company during the Term; provided, however, that Employee shall not be
prohibited from making financial investments in any other company or business or from serving on
the board of directors of any other company, subject in each case to the provisions set forth in
the Nonsolicitation and Noncompete Agreement (defined below) and the Company’s Code of Conduct or
similar guidelines of which
Employee is notified in writing. For the purposes of this Agreement, the term
“Person” shall mean any individual, corporation, limited or general partnership,
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limited liability company, joint venture, association, trust or other entity or organization, whether or
not a legal entity. Employee shall at all times observe and comply with all lawful directions and
instructions of the Board of which Employee is notified in writing.
4. Compensation.
(a) Base Compensation. For services rendered by Employee under this Agreement, the
Company shall pay to Employee Employee’s current base salary as of the Effective Date (“Base
Compensation”), per annum, payable in accordance with the Company’s customary pay periods and
subject to tax and other customary withholdings. Employee’s Base Compensation will be subject to
review by the Board on an annual basis as of the close of each fiscal year of the Company and may
be increased as the Board may deem appropriate. In the event the Board deems it appropriate to
increase Employee’s Base Compensation, that increased amount shall thereafter be the Base
Compensation for the purposes of this Agreement. Employee’s Base Compensation, as increased from
time to time, may not be decreased unless agreed to by Employee. Nothing contained herein shall
prevent the Board from paying additional compensation to Employee in the form of bonuses or
otherwise during the Term.
(b) Annual Bonus. During the Term, Employee will be eligible to participate in the
Company’s discretionary management incentive program as established by the Board (as the same may
be amended from time to time), with
an annual performance bonus range of 0% – 200% of Employee’s bonus target (the “Bonus
Target”), which Bonus Target shall initially be an amount equal to Employee’s Base
Compensation. The Bonus Target may be adjusted annually;
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provided that Employee’s Bonus
Target may not be decreased unless agreed to by Employee. Annual bonus payments will be subject to
customary withholdings.
(c) Long Term Incentive Awards.
(i) Employee will be eligible to participate in the Company’s discretionary Long Term
Incentive (defined below) plan(s) as established by the Board (as the same may be amended
from time to time), subject to the terms and conditions of the applicable plan(s). The
overall target value of the annual Long Term Incentive grants to Employee on the date of
grant will be not less than 100% of Employee’s Base Compensation.
(ii) All Long Term Incentive awards that are to be settled by the delivery of shares
are subject to shareholders’ approval of shares to be allocated to the Company’s Long Term
Incentive plan(s) and are granted under the strict purview of the Compensation Committee of
the Board.
(iii) Long Term Incentive awards will be determined utilizing the valuation methodology
used for other similarly situated executive officers of the Company.
(iv) Notwithstanding any provision to the contrary in the plan(s) governing such Long
Term Incentives, in the event that this Agreement is terminated by Employee pursuant to
Section 7(a)(ii), (iv) or (v) or by the Company pursuant to Section 7(a)(iii)(A) (other than
for
Misconduct) or (iii)(D), Employee shall have not less than one year from the Date of
Termination in which to exercise all Long Term Incentives granted to Employee by the Company
on or before the Date of Termination (including any Long Term Incentives that become vested
pursuant to Section 7 of this
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Agreement); provided that in no event shall such one
year period extend the vesting period for any Long Term Incentives beyond the date that is
10 years from the date of grant of such Long Term Incentives.
5. Additional Benefits. In addition to the compensation provided for in Section 4,
Employee shall be entitled to the following:
(a) Business Expenses. The Company shall, in accordance with any rules and
policies that it may establish from time to time for its executive officers, reimburse
Employee for business expenses reasonably incurred in the performance of Employee’s duties.
It is understood that Employee is authorized to incur reasonable business expenses for
promoting the business of the Company, including reasonable expenditures for travel,
lodging, meals and client or business associate entertainment. Requests for reimbursement
for such expenses must be accompanied by appropriate documentation.
(b) Vacation. Employee shall be entitled to four weeks of vacation per year,
without any loss of compensation or benefits. Employee shall be entitled to carry forward
any unused vacation time. Upon termination of employment of Employee for whatever reason,
Employee shall be paid for
any unused vacation time based on Employee’s Base Compensation as in effect immediately
prior to the Date of Termination.
(c) General Benefits. Employee shall be entitled to participate in (i) the
various Employee benefit plans or programs provided to the Employees of the Company in
general, including, without limitation, health (including ExecuCare), dental, disability,
401k, accident and life insurance plans, and
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(ii) the Flexible Perquisites Plan, which
provides Employee an amount equal to 4% of Employee’s Base Compensation in each calendar
year in lieu of customary perquisite benefits. Benefits are subject to the eligibility
requirements with respect to each of such benefit plans or programs and such other benefits
or perquisites as may be approved by the Board during the Term. Nothing in this Section
5(c) shall be deemed to prohibit the Company from making any changes in any of the plans or
programs described in this Section 5(c), provided the change similarly affects all executive
officers of the Company that are similarly situated.
6. Confidentiality; Nonsolicitation and Noncompete.
(a) Employee hereby acknowledges that the Company possesses certain Confidential Information
(defined below) that is peculiar to the businesses in which the Company is or may be engaged.
Employee hereby affirms that such Confidential Information is the exclusive property of the Company
and that the Company has proprietary interests in such Confidential Information. For the purposes
of this Agreement, the term “Confidential Information” shall mean any and all information
of any nature and in any form that at the time or times
concerned is not generally known to Persons (other than the Company) that are engaged in
businesses similar to that conducted or contemplated by the Company (other than by the act or acts
of an employee not authorized by the Company to disclose such information) which may include,
without limitation, the Company’s existing and contemplated products and services; the Company’s
purchasing, accounting, marketing and merchandising methods or practices; the Company’s development
data, theories of application and/or methodologies; the Company’s
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customer/client contact and/or
supplier information files; the Company’s existing and contemplated policies and/or business
strategies; any and all samples and/or materials submitted to Employee by the Company; and any and
all directly and indirectly related records, documents, specifications, data and other information
with respect thereto. Employee further acknowledges by signing this Agreement that the Company has
expended much time, cost and difficulty in developing and maintaining the Company’s customers.
(b) Employee shall (i) use the Confidential Information solely for the purpose of performing
Employee’s duties on behalf of the Company and for no other purpose whatsoever, (ii) not, directly
or indirectly, at any time during or after Employee’s employment by the Company, disclose
Confidential Information to any other Person (except to the Company’s officers in connection with
Employee’s duties on behalf of the Company) or use or otherwise exploit Confidential Information to
the detriment of the Company, and (iii) not lecture on or publish articles with respect to
Confidential Information without the prior written approval of the General Counsel of the Company.
In the event of a breach or threatened
breach of the provisions of this Section 6(b), the Company shall be entitled, in addition to
any other remedies available to the Company, to an injunction restraining Employee from disclosing
such Confidential Information.
(c) Upon termination of employment of Employee for whatever reason, Employee shall surrender
to the Company any and all documents, manuals, correspondence, reports, records and similar items
then or thereafter coming into the possession of Employee that contain any Confidential
Information; provided, however, that the Company will provide Employee reasonable
access to
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such Confidential Information to the extent required by Employee in connection with the
defense of any cause of action, dispute, proceeding or investigation made or initiated against
Employee by any Person other than the Company related to the employment of Employee by the Company
or the performance by Employee of its duties in the course of such employment.
(d) Employee agrees that, as part of the consideration for this Agreement and as an integral
part hereof, Employee has executed, delivered and agreed to be bound by the Nonsolicitation and
Noncompete Agreement attached hereto as Exhibit A, as well as any subsequent addenda
thereto.
7. Termination.
(a) This Agreement may be terminated prior to the expiration of the Term only under the terms
and conditions set forth below:
(i) Resignation (other than for Good Reason). Employee may resign Employee’s
position at any time, including by reason of retirement, by providing written notice of
resignation to the Company. In
the event of such resignation (except in the case of resignation for Good Reason
(defined below)), this Agreement shall terminate on the Date of Termination (defined in
Section 7(c) below), and Employee shall not be entitled to further compensation pursuant to
this Agreement other than the payment of any Base Compensation and General Benefits (e.g.,
unused vacation, unreimbursed business expenses, etc.) accrued and unpaid as of the Date of
Termination and the retention of any and all option shares, restricted shares or units or
other similar awards granted to Employee by the
Company under any long term incentive
plan(s) duly adopted by the
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Board (“Long Term Incentives”) that have vested or
become exercisable on or before the Date of Termination in accordance with the plan(s)
governing such Long Term Incentives (which Long Term Incentives remain subject to, and must
thereafter be exercised in accordance with, the plan(s) governing such Long Term
Incentives).
(ii) Death. If Employee’s employment is terminated due to Employee’s death,
the Company shall pay to Employee’s surviving spouse or estate, subject to customary
withholdings, not later than 30 days after Employee’s death, (A) any Base Compensation and
General Benefits accrued and unpaid as of the date of Employee’s death, and (B) a lump sum
amount, in cash, equal to to the cost for Employee to obtain one year of paid group health
and dental insurance benefits covering Employee’s spouse and dependents that are
substantially similar to those that Employee’s surviving spouse and dependents were
receiving immediately
prior to Employee’s death, and (C) notwithstanding any provision to the contrary in the
plan(s) governing such Long Term Incentives, Employee, as of the date of Employee’s death,
shall become immediately and totally vested in any and all Long Term Incentives granted to
Employee by the Company prior to the Date of Termination that have not previously vested in
full. After all payments, benefits and vesting of Long Term Incentives specified under this
Section 7(a)(ii) have been paid or performed, this Agreement shall terminate, and the
Company shall have no obligations to Employee, Employee’s spouse and dependents or
Employee’s legal representatives with respect to this Agreement. This provision shall not
be exclusive and shall be in addition to
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death benefits payable by the Company or any
insurer under any insurance plan or program covering Employee.
(iii) Discharge.
(A) The Company may terminate Employee’s employment for any reason at any time
upon written notice delivered to Employee.
(B) In the event that Employee’s employment is terminated by the Company for
any reason other than Employee’s Misconduct or Disability (both as defined below),
the following shall occur:
(I) the Company shall pay to Employee, subject to customary
withholdings, not later than 15 calendar days after the Date of Termination,
(x) a lump sum amount, in cash,
equal to the product of (1) the sum of (a) Employee’s Base Compensation
as in effect immediately prior to the Date of Termination, plus (b)
the most recent annual bonus paid by the Company to Employee, multiplied
by (2) the remaining portion of the Term, and (y) a lump amount, in
cash, equal to the cost for Employee to obtain, for the period commencing on
the Date of Termination and ending on the earlier to occur of (1) the date
that is 18 months following the Date of Termination and (2) the fixed term
date (if any), disability, accident, dental and health insurance benefits
(“Welfare Benefits”) covering Employee (and, as applicable,
Employee’s spouse and dependents) that are
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substantially similar to those
that Employee (and Employee’s spouse and dependents) were receiving
immediately prior to the Date of Termination; and
(II) notwithstanding any provision to the contrary in the plan(s)
governing such Long Term Incentives, Employee shall become immediately and
totally vested in any and all Long Term Incentives granted to Employee by
Company prior to the Date of Termination.
(C) Notwithstanding anything to the contrary in this Agreement, in the event
that Employee is terminated because of Misconduct, the Company shall have no
obligations pursuant to this Agreement after the Date of Termination other than the
payment of
any Base Compensation and General Benefits accrued and unpaid through the the
Date of Termination. For the purposes of this Agreement, the term
“Misconduct” shall mean:
(1) (A) any willful breach or habitual neglect of duty by Employee or
(B) Employee’s material and continued failure to substantially perform
Employee’s duties with the Company (other than any such failure resulting
from Employee’s incapacity due to a Disability or any such actual or
anticipated failure after the issuance of a Notice of Termination by
Employee for Good Reason) (i) in a professional manner and (ii) in a manner
that is reasonably expected as appropriate for the position, in the case of
either (A) or (B), which breach,
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neglect or failure is not cured by Employee
within 30 days from receipt by Employee of written notice from the Company
that specifies the alleged breach, neglect or failure;
(2) the intentional misappropriation or attempted intentional
misappropriation by Employee of a material business opportunity of the
Company, including an attempt to secure any personal profit in connection
with entering into any transaction on behalf of the Company;
(3) the intentional misappropriation or attempted intentional
misappropriation by Employee of any of the Company’s funds or property;
(4) the violation by Employee of the Company’s Code of Corporate
Conduct or Fraud Policy of which Employee is notified in writing; or
(5) (A) the commission by Employee of a felony offense or a misdemeanor
offense involving violent or dishonest behavior or (B) Employee engaging in
any other conduct involving fraud or dishonesty.
(D) Disability. If Employee shall have been absent from the full-time
performance of Employee’s duties with the Company for 120 consecutive calendar days
as a result of Employee’s incapacity due to a Disability, Employee’s employment may
be terminated by the Company. For the purposes of this Agreement, a
“Disability” shall exist if:
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(1) Employee is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can
be reasonably expected to result in death or can be expected to last for a
continuous period of not less than 12 months; or
(2) Employee is, by reason of any medically determinable physical or
mental impairment that can be reasonably expected to result in death or can
be expected to last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees
of the Company.
If Employee is terminated pursuant to this Section 7(a)(iii)(D), Employee shall not be
entitled to further compensation pursuant to this Agreement, except that (x) the Company
shall (1) not later than 15 days after the Date of Termination, pay to Employee any Base
Compensation and General Benefits accrued and unpaid as of the Date of Termination, (2) for
the 12 month period beginning with the Date of Termination, pay to Employee monthly the
amount by which Employee’s monthly Base Compensation as in effect immediately prior to the
Date of Termination exceeds the monthly benefit received by Employee pursuant to any
disability insurance covering Employee, and (3) not later than 15 days after the Date of
Termination, pay to Employee a lump amount, in cash, equal to the cost for Employee to
obtain, for the period commencing on the Date of Termination and ending
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on the earlier to
occur of (a) the date that is 18 months following the Date of Termination and (b) the fixed
term date (if any), health and dental insurance benefits covering Employee (and Employee’s
spouse and dependents) that are substantially similar to those that Employee (and Employee’s
spouse and dependents) were receiving immediately prior to the Date of Termination, and (y)
notwithstanding any provision to the contrary in the plan(s) governing such Long Term
Incentives, Employee shall become become immediately and totally vested in any and all Long
Term Incentives
granted to Employee by Company prior to the Date of Termination that have not previously
vested in full.
(iv) Resignation for Good Reason. Employee shall be entitled to terminate
Employee’s employment for Good Reason (as defined herein). If Employee terminates
employment for Good Reason, Employee shall be entitled to the compensation and Welfare
Benefits provided in Section 7(a)(iii)(B). For the purposes of this Agreement, the term
“Good Reason” shall mean the occurrence of any of the following circumstances
without Employee’s express written consent:
(A) any material diminution of Employee’s duties or responsibilities (other
than in connection with the termination of Employee for Misconduct or Disability in
accordance with the terms of this Agreement);
(B) any material diminution of Employee’s Base Compensation;
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(C) the relocation of Employee’s office more than 25 miles from its location at
the commencement of this Agreement; or
(D) any other material breach by the Company of its obligations under this
Agreement;
provided, however, Employee shall provide written notice (a “Good Reason
Notice”) to the Company of the initial existence of the condition causing the change in
terms or status no more than 90 days after the change in terms or status occurs, and the
Company shall have 30 days after receipt of the
Good Reason Notice to resolve the issue causing the change in terms or status. If the
Company resolves such issue, then Employee’s employment shall not be subject to the Good
Reason provisions of this Agreement as to such issue.
(v) Resignation for Corporate Change. Employee shall be entitled to terminate
Employee’s employment for a Corporate Change (as defined herein) if Employee is not retained
in Employee’s current (or a comparable) position, but only if Employee gives notice of
Employee’s intent to terminate employment within 90 days following the effective date of
such Corporate Change (provided that, notwithstanding the foregoing, the Notice of
Termination may not be given later than February 13th of the year following the year in
which the Corporate Change occurs). If Employee terminates employment for a Corporate
Change, Employee shall be entitled to the compensation and benefits provided in Section
7(a)(iii)(B). For the purposes of this Agreement, the term “Corporate Change” means a
“change
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in ownership,” a “change in effective control,” or a “change in the ownership of
substantial assets” of the Company.
(A) A “change in ownership” of the Company occurs on the date that any one
person, or more than one person acting as a group, acquires ownership of stock of
the Company that, together with stock held by such person or group, constitutes more
than 50% of the total fair market value or total voting power of the stock of the
Company. However, if any one person, or more than one person
acting as a group, is considered to own more than 50% percent of the total fair
market value or total voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons is not considered to cause a change
in ownership of the Company (or to cause a change in the effective control of the
Company (within the meaning of Section 7(v)(B)).
(B) Notwithstanding that the Company has not undergone a change in ownership
under Section 7(v)(A), a “change in effective control” of the Company occurs on the
date that a majority of members of the Board is replaced during any 12-month period
by directors whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or election. For purposes
of this Section 7(v)(B), the term “Company” refers solely to the relevant
corporation identified in the opening paragraph of this Agreement, for which no
other corporation is a majority shareholder.
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(C) A “change in the ownership of substantial assets” of the Company occurs on
the date that any one person, or more than one person acting as a group, acquires
(or has acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company that have a total
gross fair market value equal to or more than 75% percent of the total gross fair
market value of all of the assets of the Company
immediately prior to such acquisition or acquisitions. For this purpose, “gross
fair market value” means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities associated
with such assets.
(b) Notice of Termination. Any purported termination of Employee’s employment by the
Company under Section 7(a)(iii), or by Employee under Section 7(a)(i), (iv) or (v), shall be
communicated by written Notice of Termination (defined below) to the other Party in accordance with
Section 10. For the purposes of this Agreement, the term “Notice of Termination” shall
mean a notice that (i) in the case of termination by the Company, shall set forth in reasonable
detail the reason for such termination of Employee’s employment and the Date of Termination, or
(ii) in the case of resignation by Employee, shall specify in reasonable detail the basis for such
resignation and the Date of Termination. A Notice of Termination validly given by Employee
pursuant to Section 7(a)(iv) shall be effective even if given after the receipt by Employee of
notice that the Board has set a meeting to consider terminating Employee for Misconduct. A Notice
of Termination given by Employee pursuant to Section 7(a)(iv) shall be considered
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effective only
after 30 days have elapsed since Employee delivered the applicable Good Reason Notice and the
Company has failed to resolve the issue causing the change in terms or status during such 30 day
period. Any purported termination for which a Notice of Termination is
required that does not materially comply with this Section 7(b) shall not be effective.
(c) Date of Termination, Etc. The “Date of Termination” shall mean the date
specified in the Notice of Termination, provided that the Date of Termination shall be at least 15
calendar days, but not more than 45 calendar days, following the date the Notice of Termination is
given. Notwithstanding anything herein to the contrary, if a Notice of Termination is given
pursuant to Section 7(a)(v), then the Date of Termination may not be later than February 28th of
the year following the year in which the Change of Control occurs. In the event that Employee is
terminated for Misconduct, the Company may refuse to allow Employee access to the Company’s offices
(other than to allow Employee to collect Employee’s personal belongings under the Company’s
supervision) prior to the Date of Termination. Employee shall not be expected to provide further
services after the Date of Termination.
(d) Mitigation. Employee shall not be required to mitigate the amount of any payment
provided for in this Section 7 by seeking other employment or otherwise, nor shall the amount of
any payment provided for in this Agreement be reduced by any compensation earned by Employee as a
result of employment by another employer, except as otherwise expressly set forth herein and except
that any severance amounts payable to Employee pursuant to the
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Company’s severance plan or policy
for employees in general shall reduce the amount otherwise payable pursuant to Section
7(a)(iii)(B).
(e) Excess Parachute Payments. Notwithstanding anything in this Agreement to the
contrary, to the extent that any payment or benefit received or to be received by Employee
hereunder in connection with the termination of Employee’s employment would, as determined by tax
counsel selected by the Company, constitute an “Excess Parachute Payment” (as defined in Section
280G of the Internal Revenue Code), the Company shall fully “gross up” such payment so that
Employee is in the same “net” after tax position he would have been if such payment and gross up
payments had not constituted Excess Parachute Payments. No payment of a gross up shall occur until
the first business day occurring after the date that is six months after the Date of Termination.
Payment of the gross up will be made no later than the end of Employee’s taxable year next
following Employee’s taxable year in which Employee remits the related taxes.
8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
Employee’s continuing or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company and for which Employee may qualify, nor shall anything herein limit
or otherwise adversely affect such rights as Employee may have under any Long Term Incentives
granted by the Company.
9. Assignability. The obligations of Employee hereunder are personal and may not be
assigned or delegated by Employee or transferred in any manner whatsoever, nor are such obligations
subject to involuntary alienation, assignment or transfer. The Company shall have the right to
assign this Agreement and to delegate all rights, duties and obligations hereunder, either in whole
or in part, to
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any parent, affiliate, successor or subsidiary of the Company, so long as the
obligations of the Company under this Agreement remain the obligations of the Company.
10. Notice. For the purposes of this Agreement, all notices and other communications
provided for in this Agreement shall be in writing and shall be deemed to have been duly given when
delivered by Federal Express or similar courier addressed (a) to the Company, at its principal
office address, directed to the attention of the Board with a copy to the Corporate Secretary of
the Company, and (b) to Employee, at Employee’s residence address on the records of the Company, or
to such other address as either Party may have furnished to the other in writing in accordance
herewith except that notice of change of address shall be effective only upon receipt.
11. Severability. In the event that one or more of the provisions set forth in this
Agreement shall for any reason be held to be invalid, illegal, overly broad or unenforceable, the
same shall not affect the validity or enforceability of any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal, overly broad or unenforceable
provisions had never been contained therein; provided, however, that no provision
shall be severed if it is clearly apparent under the circumstances that the Parties would not have
entered into the Agreement without such provision.
12. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or the assets of the
Company to expressly assume and agree
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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. Failure of the Company to obtain
such agreement prior to the effectiveness of any such succession shall constitute Good Reason under
Section 7(a)(iv); provided that, for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of Termination. As used
herein, the term “Company” shall include any successor to all or substantially all of its
business and/or assets as aforesaid that executes and delivers the Agreement provided for in this
Section 12 or that otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall inure to the benefit of and be
enforceable by Employee’s personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees.
13. Miscellaneous.
(a) No provision of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Employee and such officer of the
Company as may be specifically authorized by the Board.
(b) No waiver by either Party at any time of any breach by the other Party of, or in
compliance with, any condition or provision of this Agreement to be performed by such other Party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
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(c) Together with the Nonsolicitation and Noncompete Agreement, this Agreement is an
integration of the Parties’ agreement; no agreement or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either Party, except those
which are set forth expressly in this Agreement and the Nonsolicitation and Noncompete Agreement.
(d) THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA.
(e) Notwithstanding anything herein to the contrary, this Agreement is intended to comply with
Internal Revenue Code Section 409A and the regulations and other guidance of general applicability
thereunder and shall at all times be interpreted in accordance with such intent such that amounts
credited under this Agreement shall not be taxable until such amounts are distributed in accordance
with the terms of this Agreement. In the event that Employee is a “specified employee” at the Date
of Termination, any amounts that are considered nonqualified deferred compensation for purposes of
Internal Revenue Code Section 409A and that are distributable because of a separation from service
shall be delayed until the first business day occuring after the date that is six months after the
Date of Termination. Any provision of this Agreement to the contrary is without effect.
(f) Reimbursements provided for under this Agreement shall be provided in accordance with
policies of the Company established from time to time.
Page 22 of 26
14. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.
15. Arbitration.
(a) Employee and the Company agree that any dispute regarding the covenants herein and/or the
validity of this Agreement and its addenda, if any, shall be resolved through arbitration.
Employee and the Company hereby expressly acknowledge that Employee’s position in the Company and
the Company’s business have a substantial impact on interstate commerce and that Employee’s
development and involvement with the Company and the Company’s business have a national and
international territorial scope commercially. Any arbitration-related matter or arbitration
proceeding of a dispute regarding the covenants herein and/or the validity of this Agreement and
its addenda shall be governed, heard, and decided under the provisions and the authority of the
Federal Arbitration Act, 9 U.S.C.A. §1, et seq., and shall be submitted for arbitration to the
office of the American Arbitration Association (“AAA”) in New Orleans, Louisiana, on demand
of either Party.
(b) Such arbitration proceedings shall be conducted in New Orleans, Louisiana, and shall be
conducted in accordance with the then-current Employment Arbitration Rules and Mediation Procedures
of the AAA. Each Party shall have the right to be represented by counsel or other designated
representatives. The Parties shall negotiate in good faith to appoint a mutually acceptable
arbitrator; provided, however, that, in the event that the Parties are
unable to agree upon an arbitrator within 30 days after the commencement of the
Page 23 of 26
arbitration
proceedings, the AAA shall appoint the arbitrator. The arbitrator shall have the right to award or
include in his or her award any relief that he or she deems proper under the circumstances,
including, without limitation, all types of relief that could be awarded by a court of law, such as
money damages (with interest on unpaid amounts from the date due), specific performance and
injunctive relief. The arbitrator shall issue a written opinion explaining the reasons for his or
her decision and award. The award and decision of the arbitrator shall be conclusive and binding
upon both Parties, and judgment upon the award may be entered in any court of competent
jurisdiction. The Parties acknowledge and agree that any arbitration award may be enforced against
either or both of them in a court of competent jurisdiction, and each waives any right to contest
the validity or enforceability of such award. The Parties further agree to be bound by the
provisions of any statute of limitations that would be otherwise applicable to the controversy,
dispute, or claim that is the subject of any arbitration proceeding initiated hereunder. Without
limiting the foregoing, the Parties shall be entitled in any such arbitration proceeding to the
entry of an order by a court of competent jurisdiction pursuant to a decision of the arbitrator for
specific performance of any of the requirements of this Agreement. The provisions of this Section
15 shall survive and continue in full force and effect subsequent to and notwithstanding expiration
or termination of this Agreement for any reason. Employee and the Company acknowledge and agree
that any and all rights they may have to resolve their claims by a jury trial are hereby expressly
waived. The
provisions of this Section 15 do not preclude Employee from filing a complaint with any
federal, state, or other governmental administrative agency, if applicable.
Page 24 of 26
IN WITNESS WHEREOF, the Parties have executed this Agreement on December 31, 2008, effective
for all purposes as of the Effective Date.
| THE XXXX GROUP INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| General Counsel and Corporate Secretary | ||||
EMPLOYEE |
||
|
/s/ Xxx Xxxxxx
|
EXHIBIT A
Form of Nonsolicitation and Noncompete Agreement
See attached.
