EMPLOYMENT AGREEMENT
Exhibit 10.5
This Employment Agreement (this “Agreement”) is entered into as of March 30, 2009 (the
“Effective Date”), by and between Xxxxxxxxxxx International, Inc., a Delaware corporation (the
“Company”), and Xxxxxxx X. Xxxxxxxx (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Company has determined that it is in the interest of the Company and the
shareholders of Xxxxxxxxxxx International Ltd. for the Company to commit to provide certain
severance benefits to the Executive in the event of his termination of employment under certain
conditions;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto do hereby agree:
1. Certain Definitions.
(a) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of
the Exchange Act.
(b) “Annual Base Salary” shall have the meaning specified in the Employment Agreement.
(c) “Annual Bonus” shall mean the Executive’s annual bonus under the annual incentive plan of
the Company and any of its Affiliates.
(d) “Annual Bonus Amount” shall mean the sum of (a) the amount of the Annual Bonus, if any,
paid or provided in any form (whether in cash, securities or any combination thereof) by the
Company or any of its Affiliates to or for the benefit of the Executive for services rendered or
labor performed during a fiscal year of the Company and (b) the amount of the discretionary bonus
or other bonus paid outside of the Company’s annual incentive plan, if any, paid or provided in any
form (whether in cash, securities or any combination thereof) by the Company or any of its
Affiliates to or for the benefit of the Employee (it being understood that if multiple bonuses are
paid for any given year, or if a bonus is made in multiple installments for a year, all such
bonuses or installments shall be aggregated as a single payment for that year in determining the
Annual Bonus Amount). The Executive’s Annual Bonus Amount shall be determined by including any
portion thereof that the Executive could have received in cash or securities in lieu of (i) any
elective deferrals made by the Executive pursuant to all nonqualified deferred compensation plans
or (ii) elective contributions made on the Executive’s behalf by the Company pursuant to a
qualified cash or deferred arrangement (as defined in section 401(k) of the Code) or pursuant to a
plan maintained under section 125 of the Code.
(e) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.
(f) “Board” shall mean the Board of Directors of the Parent.
(g) “Cause” shall mean:
(i) the willful and continued failure of the Executive to substantially perform the
Executive’s duties with the Parent or the Company (other than any such failure resulting from
incapacity due to physical or mental illness or anticipated failure after the issuance of a Notice
of Termination for Good Reason by the Executive pursuant to Section 4(d) of the Employment
Agreement), after a written
demand for substantial performance is delivered to the Executive by the Board which
specifically identifies the manner in which the Executive has not substantially performed the
Executive’s duties,
(ii) the willful engaging by the Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Parent or the Company, or
(iii) the Executive’s refusal to resign from the Company on the first anniversary of the
Effective Date following the Board’s good faith written determination (provided to the Executive no
later than thirty (30) days before such anniversary) that Executive is unable to devote sufficient
time to the Company due to his remaining a partner of Fulbright & Xxxxxxxx L.L.P. (“Fulbright”).
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 Parent or the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the Chief Executive Officer or of a more senior officer of the
Company or based upon the advice of counsel for the Parent (which may be the General Counsel or
other counsel employed by the Parent or its subsidiaries) shall be conclusively presumed to be
done, or omitted to be done, by the Executive in good faith and in the best interests of the Parent
or the Company. The cessation of employment of the Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the entire membership of the
Board at a meeting of the Board called and held for such purpose (after reasonable notice is
provided to the Executive, and the Executive is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, or, that subparagraph (iii)
applies, and specifying the particulars thereof in detail.
(h) “Change of Control” shall be deemed to have occurred if any event set forth in any one of
the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner, directly or indirectly, of twenty percent
(20%) or more of either (A) the then outstanding common shares of the Parent (the “Outstanding
Parent Common Shares”) or (B) the combined voting power of the then outstanding voting securities
of the Parent entitled to vote generally in the election of directors (the “Outstanding Parent
Voting Securities”), excluding any Person who becomes such a Beneficial Owner in connection with a
transaction that complies with clauses (A), (B) and (C) of paragraph (iii) below;
(ii) individuals, who, as of the date hereof, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least two-thirds (2/3) of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof whose election, or nomination for
election by the Parent’s shareholders, was approved by a vote of at least two-thirds (2/3) of the
Incumbent Board shall be considered as though such individual was a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election or removal of
directors or any other actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or
(iii) the consummation of a reorganization, merger, amalgamation, consolidation, scheme of
arrangement, exchange offer or similar transaction of the Parent or any of its subsidiaries or the
sale, transfer or other disposition of all or substantially all of the Parent’s Assets (any of
which a “Corporate Transaction”), unless, following such Corporate Transaction or series of related
Corporate Transactions, as the case may be, (A) all of the individuals and entities (which, for
purposes of this
- 2 -
Agreement, shall include, without limitation, any corporation, partnership, association,
joint-stock company, limited liability company, trust, unincorporated organization or other
business entity) who were the beneficial owners, respectively, of the Outstanding Parent Common
Shares and Outstanding Parent Voting Securities immediately prior to such Corporate Transaction
beneficially own, directly or indirectly, more than sixty-six and two-thirds percent (66-2/3%) of,
respectively, the then outstanding common shares and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of directors (or other
governing body), as the case may be, of the entity resulting from such Corporate Transaction
(including, without limitation, an entity which as a result of such transaction owns the Parent or
all or substantially all of the Parent’s Assets either directly or through one (1) or more
subsidiaries or entities) in substantially the same proportions as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding Parent Common Shares and the Outstanding
Parent Voting Securities, as the case may be, (B) no Person (excluding any entity resulting from
such Corporate Transaction or any employee benefit plan (or related trust) of the Parent or such
entity resulting from such Corporate Transaction) beneficially owns, directly or indirectly, twenty
percent (20%) or more of, respectively, the then outstanding shares of common stock of the entity
resulting from such Corporate Transaction or the combined voting power of the then outstanding
voting securities of such entity except to the extent that such ownership existed prior to the
Corporate Transaction and (C) at least two-thirds (2/3) of the members of the board of directors
(or other governing body) of the entity resulting from such Corporate Transaction were members of
the Incumbent Board at the time of the approval of such Corporate Transaction; or
(iv) Approval or adoption by the Board of Directors or the shareholders of the Parent of a
plan or proposal which could result directly or indirectly in the liquidation, transfer, sale or
other disposal of all or substantially all of the Parent’s Assets or the dissolution of the Parent.
(i) “Disability” shall mean the absence of the Executive from performance of the Executive’s
duties with the Parent on a substantial basis for one hundred twenty (120) calendar days as a
result of incapacity due to mental or physical illness.
(j) “Employment Agreement” shall mean the Executive’s employment agreement with the Parent, as
it may be amended from time to time.
(k) “Employment Period” shall have the meaning specified in the Employment Agreement.
(l) “Entity” shall mean means any corporation, partnership, association, joint-stock company,
limited liability company, trust, unincorporated organization or other business entity.
(m) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.
(n) “Good Reason” shall mean the occurrence of any of the following:
(i) the assignment to the Executive of any position, authority, duties or responsibilities
that are not materially consistent with the Executive’s position (including status, offices and
titles), authority, duties or responsibilities as contemplated by Section 3(a) of the Employment
Agreement (including, for example and without limitation, assignment of the Executive to a Chief
Compliance Officer position not reporting directly to the Chief Executive Officer and Board of
Directors of the ultimate publicly-traded parent company as it may in the future exist), or any
other action by the Parent or the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose any not taken in bad faith and
which is remedied by the Parent or the Company after receipt of notice thereof given by the
Executive;
- 3 -
(ii) any failure by the Parent or the Company to comply with any of the provisions of this
Agreement or the Employment Agreement (including, without limitation, its obligations under Section
3(a) of the Employment Agreement), other than any failure not occurring in bad faith and which is
remedied by the Parent or the Company after receipt of notice thereof given by the Executive;
(iii) any failure by the Parent or the Company to continue to provide the Executive with
benefits enjoyed by the Executive at any time prior to such failure under any of the Parent’s and
the Company’s compensation, bonus, retirement, pension, savings, life insurance, medical, health
and accident, or disability plans, or the taking of any other action by the Parent or the Company
which would directly or indirectly reduce any of such benefits or deprive the Executive of any
fringe benefits or perquisites enjoyed by the Executive at any time prior to such action;
(iv) the Parent’s or the Company’s requiring the Executive to be based at any office or
location other than as provided in Section 3(a)(i) of the Employment Agreement or the Parent’s or
the Company’s requiring the Executive to travel on business more than 50% of the working days in
any given quarter;
(v) any purported termination by the Parent or the Company of the Executive’s employment
(including, without limitation, any secondment of the Executive without the Executive’s prior
express agreement in writing);
(vi) any failure by the Parent to comply with and satisfy Section 9(b) of the Employment
Agreement;
(vii) failure by the Parent (including any successor) to agree, execute and enter into a new
employment agreement with the Executive prior to the termination or expiration of this Agreement,
with such employment agreement having the same terms and conditions as existed in agreements
between the Parent or the Company and its officers prior to December 30, 2008, and incorporating
such terms and conditions that are more favorable to the Executive from all agreements existing
after January 1, 2009; or
(viii) in connection with, as a result of or following a Change of Control, the giving of
notice to the Executive that the Employment Period shall not be extended.
In the event of a Change of Control or other Corporate Transaction in which the Parent’s
common shares may cease to be publicly traded, following the Change of Control or the consummation
of such other Corporate Transaction, “Good Reason” shall be deemed to exist upon the occurrence of
any of the events listed in clauses (i) through (vii) above and also in the event Executive is
assigned to any position (including status, offices, titles and reporting requirements), authority,
duties or responsibilities that are (A) not at or with the publicly-traded ultimate parent company
of the successor to the Parent or the corporation or other entity surviving or resulting from such
Corporate Transaction or (B) inconsistent with the Executive’s position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as contemplated by
Section 3(a) of the Employment Agreement.
For purposes of this Agreement, any good faith determination of “Good Reason” made by the
Executive shall be conclusive.
(o) “IRS” shall mean the Internal Revenue Service.
(p) “Parent” shall mean Xxxxxxxxxxx International Ltd. or any successor to Xxxxxxxxxxx
International Ltd., including but not limited to any Entity into which Xxxxxxxxxxx International
Ltd. is merged, consolidated or amalgamated, or any Entity otherwise resulting from a Corporate
Transaction.
- 4 -
(q) “Parent’s Assets” shall mean the assets (of any kind) owned by the Parent, including,
without limitation, the securities of the Parent’s Subsidiaries and any of the assets owned by the
Parent’s Subsidiaries.
(r) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the
Parent or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Parent or any of its Affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering by the Parent of such securities, or (iv) a corporation
or other entity owned, directly or indirectly, by the shareholders of the Parent in the same
proportions as their ownership of common shares of the Parent.
(s) “Section 409A” shall mean section 409A of the Internal Revenue Code of 1986, as amended
and the final Department of Treasury regulations issued thereunder.
(t) “Separation From Service” shall have the meaning ascribed to such term in Section 409A.
(u) “Specified Employee” shall have the meaning ascribed to such term in Section 409A.
(v) “Subsidiary” shall mean any majority-owned subsidiary of the Parent or any majority-owned
subsidiary thereof, or any other Entity in which the Parent owns, directly or indirectly, a
significant financial interest provided that the Chief Executive Officer of the Parent designates
such Entity to be a Subsidiary for the purposes of this Agreement.
(w) “Term of the Agreement” shall mean the period commencing on March 30, 2009 and ending on
December 31, 2009.
2. Termination of Employment.
(a) Death or Disability. The Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. If the Parent determines in good faith that the
Disability of the Executive has occurred during the Employment Period, it may provide the Executive
with written notice in accordance with the Employment Agreement of its intention to terminate the
Executive’s employment. In such event, the Executive’s employment with the Parent shall terminate
effective thirty (30) days after receipt of such notice by the Executive (the “Disability Effective
Date”), provided that within the thirty (30)-day period after such receipt, the Executive shall not
have returned to full-time performance of the Executive’s duties. In addition, if a physician
selected by the Executive determines that the Disability of the Executive has occurred, the
Executive (or his representative) may provide the Company with written notice in accordance with
the Employment Agreement of the Executive’s intention to terminate his employment. In such event,
the Disability Effective Date shall be thirty (30) days after receipt of such notice by the
Company.
(b) Cause. The Parent may terminate the Executive’s employment during the Employment Period
for Cause.
(c) Good Reason. The Executive’s employment may be terminated by the Executive at any time
during the Employment Period for Good Reason.
(d) Notice of Termination. Any termination during the Employment Period shall be communicated
by Notice of Termination to the other party hereto given in accordance with Section 11(b)
- 5 -
of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written
notice which (i) indicates the specific termination provision in this Agreement or the Employment
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s employment under the
provision so indicated and (iii) if the Date of Termination (as defined below) is other than the
date of receipt of such notice, specifies the termination date (which date, in the case of a notice
by the Company, shall be not more than 30 days after the giving of such notice). The failure by
the Executive or the Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive
or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s
or the Company’s rights hereunder.
(e) Date of Termination. “Date of Termination” shall mean:
(i) if the Executive’s employment is terminated by the Company for Cause, or by the Executive
for Good Reason, the date of receipt of the Notice of Termination or any later date specified
therein, as the case may be;
(ii) if the Executive’s employment is terminated by the Company or the Parent other than for
Cause, the Date of Termination shall be the date on which the Executive receives notice of such
termination; and
(iii) if the Executive’s employment is terminated by reason of death or Disability, the Date
of Termination shall be the date of death of the Executive or the Disability Effective Date, as the
case may be.
3. Obligations of the Company Upon Termination.
(a) Death, Disability, Good Reason or Other than For Cause. If, during the Employment Period
and prior to the expiration of the Term of the Agreement, the Executive’s employment is terminated
by reason of the Executive’s death or Disability, by the Parent or the Company for any reason other
than for Cause or by the Executive for Good Reason:
(i) The Company shall pay to the Executive (or Executive’s heirs, beneficiaries or
representatives as applicable), at the times specified in clause (vii), the following amounts:
(A) an amount equal to the Executive’s Annual Base Salary through the Date of Termination
for
periods following his Separation From Service to the extent not theretofore paid;
(B) an amount equal to the product of (x) the higher of (I) the highest Annual Bonus
Amount
for the preceding five (5) calendar years and (II) the Annual Bonus Amount that would be payable in
respect of the then current fiscal year (and annualized for any fiscal year consisting of less than
twelve (12) months) (such higher amount being referred to as the “Highest Annual Bonus”, provided
that in no case will the Highest Annual Bonus be less than 50% of the Executive’s then current
Annual Base Salary) and (y) a fraction, the numerator of which is the number of days in the then
current fiscal year through the Date of Termination, and the denominator of which is three hundred
sixty-five (365);
(C) an amount equal to three times the sum of (i) the higher of (1) the
Executive’s then
current Annual Base Salary and (2) the Executive’s Annual Base Salary at any point during the last
five (5) years ended prior to the Termination Date and (ii) the Highest Annual Bonus (for the
avoidance of doubt, the Highest Annual Bonus will in no case be less than 50% of the Executive’s
then current Annual Base Salary);
- 6 -
(D) an amount equal to three times the sum of (i) the total of the employer basic and
matching
contributions credited to the Executive under the Company’s 401(k) Savings Plan (the “401(k) Plan”)
during the twelve (12)-month period immediately preceding the month of the Executive’s Date of
Termination, and (ii) the amount that would have been credited and contributed to the Executive and
his accounts under all other deferred compensation plans using the amounts specified in clauses
(i) and (ii) of Section 3(a)(i)(C), such total amount to be grossed up so that the amount the
Executive actually receives after payment of any federal or state taxes payable thereon equals the
amount first described above; and
(E) the total value of all fringe benefits received by the Executive on an annualized basis
multiplied by three (3).
(ii) For a period of three (3) years from the Executive’s Date of Termination, or such longer
period as may be provided by the terms of the appropriate plan, program, practice or policy, the
Company shall continue benefits to the Executive and the Executive’s family equal to those which
would have been provided to them in accordance with the plans, programs, practices and policies
described in Section 3(b)(iv) of the Employment Agreement if the Executive’s employment had not
been terminated; provided, however, that with respect to any of such plans, programs, practices or
policies requiring an employee contribution, the Executive (or Executive’s heirs or beneficiaries
as applicable) shall continue to pay the monthly employee contribution for same, and provided
further, that if the Executive becomes re-employed by another employer and is eligible to receive
medical or other welfare benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under such other plan during
such applicable period of eligibility. If any of the dental, accident, health insurance or other
benefits specified in this Section 3(a)(ii) are taxable to the Executive and are not exempt from
Section 409A, the following provisions shall apply to the reimbursement or provision of such
benefits. The Executive shall be eligible for reimbursement for covered welfare expenses, or for
the provision of such benefits on an in-kind basis, during the period commencing on Executive’s
Date of Termination and ending on the third anniversary of such date. The amount of such welfare
benefit expenses eligible for reimbursement or the in-kind benefits provided under this Section
3(a)(ii), during the Executive’s taxable year will not affect the expenses eligible for
reimbursement, or the benefits to be provided, in any other taxable year (with the exception of
applicable lifetime maximums applicable to medical expenses or medical benefits described in
Section 105(b) of the Code). The Executive’s right to reimbursement or direct provision of
benefits under this Section 3(a)(ii) is not subject to liquidation or exchange for another benefit.
To the extent that the benefits provided to the Executive pursuant to this Section 3(a)(ii) are
taxable to the Executive and are not otherwise exempt from Section 409A, any reimbursement amounts
to which the Executive would otherwise be entitled under this Section 3(a)(ii) during the first six
months following the date of the Executive’s Separation From Service shall be accumulated and paid
to the Executive on the date that is six months following the date of his Separation From Service.
All reimbursements by the Company under this Section 3(a)(ii) shall be paid no later than the
earlier of (i) the time periods described above and (ii) the last day of the Executive’s taxable
year following the taxable year in which the expense was incurred. The Company may, with the
agreement of the Executive, provide any or all of the foregoing benefits to the Executive through a
fully insured or pre-paid program or arrangement.
(iii) All benefits and amounts under the Company’s deferred compensation plan and all other
benefit plans (except as specifically provided for in Section 4(b) below), not already vested shall
become immediately one hundred percent (100%) vested as of the Date of Termination. All options to
acquire common shares of the Parent, all restricted common shares of the Parent, and all share
appreciation rights the value of which is determined by reference to or based upon the value of
common shares of the Parent, held by the Executive under any plan of the Company or its affiliated
companies shall become immediately vested, exercisable and nonforfeitable. The effect, if any, of
a Change of
- 7 -
Control on any other equity incentives and other awards the value of which is determined by
reference to or based upon the value of common shares of the Parent shall be determined in
accordance with the terms of the applicable award agreement.
(iv) To the extent not already paid or provided, the Company shall timely pay or provide to
the Executive any other amounts or benefits required to be paid or provided or which the Executive
is eligible to receive under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (collectively, the “Other Benefits”).
(v) If the Executive’s employment is terminated by reason of the Executive’s death, the Other
Benefits (as defined in this Section) shall also include, without limitation, and the Executive’s
estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most
favorable benefits provided by the Company and its affiliated companies to the estates and
beneficiaries of the officers of the Company and such affiliated companies under such plans,
programs, practices and policies relating to death benefits, if any, in effect on the date hereof
or, if more favorable, those in effect on the date of the Executive’s death.
(vi) If the Executive’s employment is terminated by reason of the Executive’s Disability, the
Other Benefits (as defined in this Section) shall also include, without limitation, and the
Executive shall be entitled after the Disability Effective Date to receive, disability and other
benefits at least equal to the most favorable benefits generally provided by the Company and its
affiliated companies to the Executive’s disabled peer officers and/or their families in accordance
with such plans, programs, practices and policies relating to disability, if any, in effect
generally on the date hereof or, if more favorable, those in effect at the time of the Disability.
(vii) The Company shall pay or provide to the Executive the amounts or benefits specified in
Sections 3(a)(i)(A), 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and 3(a)(i)(E), 30 days following the date
of the Executive’s Separation From Service if he is not a Specified Employee on the date of his
Separation From Service or on the date that is six months following the date of his Separation From
Service if he is a Specified Employee.
(viii) If the Executive is a Specified Employee, on the date that is six months following the
Executive’s Separation From Service, the Company shall pay to the Executive, in addition to the
amounts reflected in clause (x), an amount equal to the interest that would be earned on the
amounts specified in Sections 3(a)(i)(A), 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and 3(a)(i)(E) for the
period commencing on the date of the Executive’s Separation From Service until the date of payment
of such amounts, calculated using an interest rate of five percent per annum (the “Interest
Amount”).
(b) Cause. If the Executive’s employment is terminated for Cause during the Employment Period
and prior to the expiration of the Term of the Agreement, this Agreement shall terminate without
further obligations to the Executive, other than the obligation to pay to the Executive (x) his
Annual Base Salary through the Date of Termination for periods following his Separation From
Service on the date that is 30 days following the date of the Employee’s Separation From Service if
he is not a Specified Employee or on the date that is six months following the date of his
Separation From Service if he is a Specified Employee, and (y) Other Benefits, to the extent
theretofore unpaid.
(c) Termination by Executive Other Than for Good Reason. If the Executive voluntarily
terminates his employment during the Employment Period and prior to the expiration of the Term of
the Agreement for any reason other than for Good Reason, the Executive’s employment shall terminate
without further obligations to the Executive, other than (x) the obligation to pay to the Executive
his Annual Base Salary through the Date of Termination for periods following his Separation From
Service,
- 8 -
(y) Other Benefits and (z) the rights provided in Section 4. The Company shall pay to the
Executive the amount specified in clause (x) on the date that is 30 days following the date of the
Employee’s Separation From Service if he is not a Specified Employee or on the date that is six
months following the date of his Separation From Service if he is a Specified Employee.
4. Other Rights. Except as provided herein, nothing in this Agreement shall prevent or
limit the Executive’s continuing or future participation in any plan, program, policy or practice
provided by the Company or any of its affiliated companies and for which the Executive may qualify,
nor shall anything herein limit or otherwise affect such rights as the Executive may have under any
plan, contract or agreement with the Company or any of its affiliated companies. Except as
otherwise expressly provided herein, amounts which are vested benefits, which vest according to the
terms of this Agreement or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company or any of its
affiliated companies prior to, at or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice, program, contract or agreement. If any severance
payments are required to be paid to the Executive in conjunction with severance of employment under
federal, state or local law, the severance payments paid to the Executive under this Agreement will
be deemed to be in satisfaction of any such statutorily required benefit obligations to the extent
that doing so would not result in an acceleration of payment of nonqualified deferred compensation
that is prohibited under Section 409A.
5. Full Settlement.
(a) No Rights of Offset. The Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the Company may have
against the Executive or others.
(b) No Mitigation Required. The Company agrees that, if the Executive’s employment with the
Company terminates, the Executive is not required to seek other employment or to attempt in any way
to reduce any amounts payable to the Executive by the Company pursuant to this Agreement. Further,
except as specified in Section 3(a)(ii), the amount of any payment or benefit provided for in this
Agreement shall not be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company, or otherwise.
(c) Legal Fees. The Company agrees to pay promptly as incurred, 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 the Executive of the validity or
enforceability of, or liability under, any provision of this Agreement or the Employment Agreement
or any guarantee of performance thereto (including as a result of any contest by the Executive
about the amount of any payment pursuant to this Agreement or the Employment Agreement). The legal
fees or expenses that are subject to reimbursement pursuant to this Section 5(c) shall not be
limited as a result of when the fees or expenses are incurred. The amount of legal fees or
expenses that is eligible for reimbursement pursuant to this Section 5(c) during a given taxable
year of the Executive shall not affect the amount of expenses eligible for reimbursement in any
other taxable year of the Executive. The right to reimbursement pursuant to this Section 5(c) is
not subject to liquidation or exchange for another benefit. Any amount to which the Executive is
entitled to reimbursement under this Section 5(c) during the first six months following the date of
the Executive’s Separation From Service shall be accumulated and paid to the Executive on the date
that is six months following the date of his Separation From Service. All reimbursements by the
Company under this Section 5(c) shall be paid no later than the
- 9 -
earlier of (i) the time periods described above and (ii) the last day of the Executive’s
taxable year next following the taxable year in which the expense was incurred.
6. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that
any payment or distribution by the Parent, the Company or any of their affiliated companies to or
for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement, any other plan, agreement or contract or otherwise, but determined
without regard to any additional payments required under this Section 6) (a “Payment”) would be
subject to any additional tax or excise tax imposed by sections 409A, 457A or 4999 of the Code (and
any successor provisions or sections to sections 409A, 457A and 4999) or any interest or penalties
are incurred by the Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then
the Executive shall be entitled to promptly receive from the Company an additional payment (a
“Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), including without limitation, any
income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed
upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments. Any Gross Up Payment shall be made by the Company at least
10 days prior to the date that the Executive is required to remit to the relevant taxing authority
any federal, state and local taxes imposed upon the Executive, including the amount of additional
taxes imposed upon the Executive due to the Company’s payment of the initial taxes on such amounts.
Notwithstanding any provision of this Agreement to the contrary, any amounts to which the
Executive would otherwise be entitled under this Section 6(a) during the first six months following
the date of the Executive’s Separation From Service shall be accumulated and paid to the Executive
on the date that is six months following the date of his Separation From Service. All
reimbursements by the Company under this Section 6(a) be paid no later than the earlier of (i) the
time periods described above and (ii) the last day of the Executive’s taxable year next following
the taxable year in which the expense was incurred.
(b) Subject to the provisions of Section 6(c), all determinations required to be made under
this Section 6, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination shall be made
by PricewaterhouseCoopers or, as provided below, such other certified public accounting firm as may
be designated by the Executive (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Company and the Executive within fifteen (15) business days after the
receipt of notice from the Executive that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change of Control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations required hereunder
(which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 6, shall be paid by the Company to the Executive within five
(5) days after the receipt of the Accounting Firm’s determination. Any determination by the
Accounting Firm, absent manifest error, shall be binding upon the Company and the Executive,
subject to the last sentence of Section 6(a), and in no event later than the payment deadline
specified in Section 6(a). As a result of the uncertainty in the application of section 4999 of
the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which will not have been made by the Company should have been made
(“Underpayment”), consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 6(c) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and
- 10 -
any such Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive, subject to the last sentence of Section 6(a), and in no event later than the payment
deadline specified in Section 6(a).
(c) The Executive shall notify the Company in writing of any claim by the IRS that, if
successful, would require the payment by the Company of the Gross-Up Payment (or an additional
Gross-Up Payment) in the event the IRS seeks higher payment. Such notification shall be given as
soon as practicable, but no later than ten business days after the Executive is informed in writing
of such claim, and shall apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of
the thirty (30)-day period following the date on which he gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such claim is due). If
the Company notifies the Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the Company relating to such
claim,
(ii) take such action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order to effectively contest such claim, and
(iv) permit the Company to participate in any proceedings relating to such claims; provided,
however, that the Company shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred at any time during the period that ends ten years following the
lifetime of the Executive in connection with such proceedings and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Section 6(c), the Company shall
control all proceedings taken in connection with such contest and, at its sole option, may pursue
or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct the Executive to pay
the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay such claim and xxx
for a refund, the Company shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. The Company shall not direct the Executive to pay
such a claim and xxx for a refund if, due to the prohibitions of section 402 of the Xxxxxxxx-Xxxxx
Act of 2002, the Company may not advance to the Executive the amount necessary to pay such claim.
All such costs and expenses shall be made by the Company at least 10 days prior to the date that
the Executive is required to pay or incur such costs and expenses. The costs and expenses that are
subject to be paid by the Company pursuant to this Section 6(c) shall not be limited as a result of
when the costs or expenses are incurred. The amounts of costs or expenses that are eligible for
payment pursuant to this Section 6(c)(iv) during a given taxable year of the Executive shall not
affect the amount of costs or expenses eligible for payment
- 11 -
in any other taxable year of the Executive. The right to payment of costs and expenses
pursuant to this Section 6(c)(iv) is not subject to liquidation or exchange for another benefit.
Notwithstanding any provision of this Agreement to the contrary, any amounts to which the Executive
would otherwise be entitled under this Section 6(c)(iv) during the first six months following the
date of the Employee’s Separation From Service shall be accumulated and paid to the Executive on
the date that is six months following the date of his Separation From Service. All reimbursements
by the Company under this Section 6(c)(iv) shall be paid no later than the earlier of (i) the time
periods described above and (ii) the last day of the Executive’s taxable year next following the
taxable year in which the expense was incurred.
(d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to
Section 6(c), the Executive becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company’s complying with the requirements of Section 6(c)) promptly
pay to the Company the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 6(c), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days
after such determination, then such advance shall not be required to be repaid.
(e) Any provision in this Agreement or any other plan or agreement to the contrary
notwithstanding, if the Company is required to pay a Gross-Up Payment pursuant to the provisions of
this Agreement and pursuant to the provisions of another plan or agreement, then the Company shall
pay the total of the amounts determined pursuant to this Agreement and the provisions of such other
plan or agreement.
7. Confidential Information. The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive’s employment by the Company or any of its affiliated
companies, provided that it shall not apply to information which is or shall become public
knowledge (other than by acts by the Executive or representatives of the Executive in violation of
this Agreement), information that is developed by the Executive independently of such information,
or knowledge or data or information that is disclosed to the Executive by a third party under no
obligation of confidentiality to the Company. After termination of the Executive’s employment with
the Company, the Executive shall not, without the prior written consent of the Company or as may
otherwise be required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it. In no event shall
an asserted violation of the provision of this Section 7 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this Agreement. Further,
notwithstanding the foregoing provisions of this Section, Executive shall be entitled to and shall
disclose and discuss any secret or confidential information, knowledge or data acquired by
Executive to and with outside counsel for the Company or its Affiliates (including, without
limitation, other partners or attorneys associated with Fulbright while Fulbright is serving as
outside counsel for the Company or its Affiliates) in any instance when Executive determines, in
the good faith judgment of Executive, that such disclosure or discussion is necessary or
appropriate.
8. Disputed Payments And Failures To Pay. If the Company fails to make a payment under
this Agreement in whole or in part as of the payment date specified in this Agreement, either
intentionally or unintentionally, other than with the consent of the Employee, the Company shall
owe the Employee interest on the delayed payment at the applicable Federal rate provided for in
section 7872(f)(2)(A) of the Code if the Employee (i) accepts the portion (if any) of the payment
that the Company is willing to make
- 12 -
(unless such acceptance will result in a relinquishment of the claim to all or part of the
remaining amount) and (ii) makes prompt and reasonable good faith efforts to collect the remaining
portion of the payment. Any such interest payments shall become due and payable effective as of the
applicable payment date(s) specified in Section 3 with respect to the delinquent payment(s) due
under Section 3.
9. Funding. The Executive shall have no right, title, or interest whatsoever in or to any
assets of the Company or any investments which the Company may make to aid it in meeting its
obligations under this Agreement. The Executive’s right to receive payments under this Agreement
shall be no greater than the right of an unsecured general creditor of the Company. Immediately
prior to a Change in Control, the Company shall create an irrevocable grantor trust (the “Rabbi
Trust”) which shall be subject to the claims of creditors of the Company. In the event that the
Executive is a Specified Employee at the time he incurs a Separation From Service or at the time
the Company determines that it is reasonably likely that the Executive will incur a Separation From
Service in connection with a Change in Control, then immediately upon the Executive’s Separation
From Service or, if earlier, the date on which the Company makes a determination that the Executive
is reasonably likely to incur a Separation From Services in connection with a Change in Control,
the Company shall transfer to the Rabbi Trust cash sufficient (on an undiscounted basis) to pay the
cash amounts specified in Sections 3(a)(i)(A), 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and 3(a)(i)(E),
the estimated amount of the Gross-Up Payment to be made under Section 6 and the Interest Amount.
The cash amounts specified in Sections 3(a)(i)(A), 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and
3(a)(i)(E), the Gross-Up Payment and the Interest Amount shall be paid from the Rabbi Trust on the
dates specified in Sections 3 and 6 herein, provided that the Company shall remain liable to pay
any all amounts which for any reason are not paid from the Rabbi Trust. The trustee of the Rabbi
Trust shall be a bank or trust company selected by the Company and approved by the Executive (in
his sole discretion) prior to the Change in Control.
10. Successors.
(a) This Agreement is personal to the Executive and shall not be assignable by the Executive
otherwise 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 personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) In addition to any obligations imposed by law upon any successor to the Company, the
Company will require any successor (whether direct or indirect, by purchase, merger, consolidation,
amalgamation, scheme of arrangement, exchange offer, operation of law or otherwise (including any
purchase, merger, amalgamation, Corporate Transaction or other transaction involving the Parent,
Company or any subsidiary or Affiliate of the Company), to all or substantially all of the
Company’s or Parent’s business and/or the Parent’s Assets or the Company’s assets to expressly
assume and agree to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle the Executive to compensation from the
Company in the same amount and on the same terms as the Executive would be entitled to hereunder if
the Executive were to terminate the Executive’s employment for Good Reason after a Change of
Control, except 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 in this Agreement,
“Company” shall mean the Company as hereinbefore defined and any successor to its business and/or
assets as provided above.
- 13 -
11. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
| If to the Executive: | Xxxxxxx X. Xxxxxxxx | |||
| 0000 Xxxxxxxxxx Xxxxx, XX | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| If to the Company: | Xxxxxxxxxxx International, Inc. | |||
| 000 Xxxx Xxx Xxxxxxxxx | ||||
| Xxxxxxx, Xxxxx 00000 | ||||
| Attention: General Counsel |
or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notices and communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right to the Executive or the Company may
have hereunder, including without limitation, the right of the Executive to terminate employment
for Good Reason shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) This Agreement, the Employment Agreement, the offer letter dated February 16, 2009 as
amended on March 18, 2009, and the Indemnification Agreements between Executive and Xxxxxxxxxxx
International, Inc. and Xxxxxxxxxxx International Ltd. constitute the entire agreement and
understanding between the parties relating to the subject matter hereof and supersedes all prior
agreements between the parties relating to the subject matter hereof.
(g) The payments and benefits contemplated in this Agreement are being provided solely in
consideration of services rendered by the Executive to the Company.
- 14 -
IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the
authorization from its Board of Directors, the Company has caused these presents to be executed in
its name and on its behalf, all as of the day and year first above written.
| /s/ XXXXXXX X. XXXXXXXX Xxxxxxx X. Xxxxxxxx |
||||
| XXXXXXXXXXX INTERNATIONAL, INC. | ||||
| By: | /s/ XXXXXXX X. DUROC-XXXXXX | |||
| Xxxxxxx J. Duroc-Xxxxxx | ||||
| President | ||||
- 15 -
