EMPLOYMENT AGREEMENT
Exhibit
10.15
AGREEMENT
entered into as of January 30, 2006, by and between XXXXXXXX CORPORATION, an
Iowa corporation (the "Company"), and XXXXXXX X. XXXX ("Xxxx"), to become
effective July 1, 2006.
WITNESSETH:
WHEREAS,
Xxxx has been employed by the Company as its President; and
WHEREAS,
the Company wishes to continue to employ Xxxx pursuant to the terms and
conditions hereof, and in order to induce Xxxx to enter into this agreement (the
"Agreement") and to secure the benefits to accrue from his performance hereunder
is willing to undertake the obligations assigned to it herein; and
WHEREAS,
Xxxx is willing to continue his employment with the Company under the terms
hereof and to enter into the Agreement;
NOW
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Position; Duties;
Responsibilities.
1.1 Xxxx
shall initially serve as President and Chief Executive Officer of the Company
effective July 1, 2006. Xxxx shall at all times report to and be
subject to the supervision, control and direction of the Board of Directors of
the Company. Xxxx shall at all times be the most senior executive
officer of the Company. Subject only to Xxxx’x duty to report to the
Board, Xxxx’x responsibilities and authorities hereunder shall include day to
day and strategic authority over the Company and its affiliates, P&L
authority over all operations of the Company and its affiliates, and the duty
and authority to hire, make employment decisions, and terminate all subordinates
employed by the Company or its affiliates and Xxxx shall report directly and
exclusively to the Board, and all other officers, employees, and consultants of
the Company shall (except to the extent otherwise prescribed by law, regulation,
or principles of good corporate governance) report directly (or indirectly
through subordinates) to Xxxx. Xxxx shall have such other
responsibilities and authorities consistent with the status, titles and
reporting requirements set forth herein as are appropriate to said positions,
subject to change (other than diminution in position, authority, duties or
responsibilities) from time to time by the Board of Directors of the
Company.
1.2 During
the course of his employment, Xxxx agrees to devote his full time and attention
and give his best efforts and skills to furthering the business and interests of
the Company, which, subject to the mutual agreement of Xxxx and the Board of
Directors, which shall not be unreasonably withheld, may include Xxxx
volunteering his time and efforts on behalf of charitable, civic, professional
organizations and boards of other corporations.
2. Term.
The term
of employment under this Agreement shall commence as of July 1, 2006, and
shall continue through June 30, 2009, unless sooner terminated in
accordance with this Agreement, and thereafter as herein
provided. Xxxx'x term of employment shall automatically renew for
subsequent one (1) year terms, the first of which would begin on July 1,
2009, subject to the terms of this Agreement unless either party gives written
notice six (6) months or more prior to the expiration of the then existing term
of its decision not to renew (the "Term").
In the
event this Agreement expires at the end of the Term, as extended if applicable,
after the Company has delivered a Non-Renewal Notice to Xxxx, such termination
of Xxxx’x employment with the Company will be treated for all purposes hereunder
as a termination of employment by the Company Without Cause pursuant to Section
9.4.
3. Base
Salary.
3.1 The
Company shall pay Xxxx a base salary during the Term of this Agreement at the
minimum annual rate of Eight Hundred Ten Thousand Dollars ($810.000) ("Base
Salary"), payable in accordance with the standard payroll practices of the
Company.
3.2 It
is understood that the Base Salary is to be Xxxx'x minimum annual compensation
during the Term. The Base Salary may increase at the discretion of
the Compensation Committee of the Company's Board of Directors ("Compensation
Committee"). Base Salary shall include all such increased amounts,
and, if increased, Base Salary shall not thereafter be decreased.
4. Long-Term Incentive
Plans.
During
the Term of this Agreement, Xxxx shall be eligible to participate in all
long-term incentive plans, including, without limitation, stock incentive plans
adopted by the Company and in effect (collectively, "Long-Term Incentive
Plans"), at levels of awards to be granted by the Compensation Committee
commensurate with the level of Xxxx'x responsibilities and performance
thereof. At its regular August 2006 meeting the Compensation
Committee shall approve an award to Xxxx of One Hundred Six Thousand (106,000)
stock options with a three (3) year cliff vesting schedule and a strike price
equal to the fair market value of Xxxxxxxx common stock on the date of such
award.
5. Bonus.
5.1 During
the Term of this Agreement, Xxxx shall be eligible to participate in the
Xxxxxxxx Management Incentive Plan (or any successor or replacement annual
incentive plan of the Company) ("MIP"), for such periods as it continues in
effect, subject to the terms of the MIP, and to the discretion vested in the
Compensation Committee under the MIP; provided, however, that the percentage of
Base Salary payable as a target bonus under the MIP shall not be less than one
hundred percent (100%) (actual Company financial results may result in an actual
bonus paid to Xxxx equal to less than or more than one hundred percent (100%) of
Base Salary).
5.2 All
bonuses pursuant to this Section 5 shall be paid to Xxxx in conformance with the
Company's normal bonus pay policies following the end of the respective fiscal
year. For the purpose of this Section 5, bonuses paid with respect to
the fiscal year shall include payments made outside of the fiscal year but for
such fiscal year and shall exclude payments made in the fiscal year that are for
another fiscal year.
6. Short-Term
Disability.
During
any period of short-term disability, the Company will continue to pay to Xxxx
the Base Salary throughout the period of short-term disability, but in no event
beyond the end of Term. In addition, Xxxx will continue to receive
all rights and benefits under the benefit plans and programs of the Company in
which Xxxx is a participant as determined in accordance with the terms of such
plans and programs, and Xxxx shall be eligible to receive the benefit of his
target MIP bonus for the initial year in which the short-term disability occurs
without reduction for the period of short-term disability. In the
event of Xxxx'x death during a period of short-term disability, the provisions
of Section 9.1 shall apply. For the purposes of this Agreement,
short-term disability shall be defined as the incapacitation of Xxxx by reason
of sickness, accident or other physical or mental disability which continues for
a period not to exceed the fifth month anniversary of the date of the cause or
onset of such incapacitation. All benefits provided under this
Section 6 shall be in replacement of and not in addition to benefits payable
under the Company’s short-term and long-term disability plan(s), except to the
extent such disability plan(s) provide greater benefits than the disability
benefits provided under this Agreement, in which case the applicable disability
plan(s) would supersede the applicable provisions of this
Agreement. In the event Xxxx is determined to be permanently disabled
(as determined under Section 9.2), the provisions of Section 9.2 shall
apply.
7. Employee Benefit
Plans.
7.1 During
the Term of this Agreement and subject to all eligibility requirements, and to
the extent permitted by law, Xxxx will have the opportunity to participate in
all employee benefit plans and programs generally available to the Company's
employees in accordance with the provisions thereof as in effect from time to
time, including, without limitation, medical coverage, group life insurance,
holidays and vacations, Xxxxxxxx Savings and Investment Plan (401k) and the
Xxxxxxxx Employees' Retirement Income Plan, but not including the Company's
short-term and long-term disability plans, except to the extent that such
disability plans provide greater benefits than the disability benefits provided
under this Agreement, in which case the applicable disability plan would
supersede the applicable provisions of this Agreement.
7.2 In
addition to benefits described in Section 7.1 during the Term of this Agreement,
Xxxx shall also receive or participate in, to the extent permitted by law, the
various perquisites and plans generally available to officers of the Company in
accordance with the provisions thereof as in effect from time to time including,
without limitation, the following perquisites to the extent the Company
continues to offer them: an automobile or automobile allowance, country club
dues, dining club dues, tax and estate planning, supplemental medical plan and
executive life insurance (if insurable). All such reimbursements or in-kind
benefits shall be payable by the Company on or before the last day of Xxxx’x
taxable year following the taxable year in which the expense was incurred. The
expenses paid or in-kind benefits provided by the Company during any taxable
year of Xxxx will not affect the expenses paid or in-kind benefits provided by
the Company in another taxable year. This right to reimbursement or in-kind
benefits is not subject to liquidation or exchange for another benefit. In
addition, Xxxx shall participate in the Xxxxxxxx Replacement Benefit Plan and
the Xxxxxxxx Supplemental Benefit Plan.
8. Expense
Reimbursements.
During
Xxxx'x employment with the Company, Xxxx will be entitled to receive
reimbursement by the Company for all reasonable, out-of-pocket expenses incurred
by him (in accordance with policies and procedures established by the Company),
in connection with his performing services hereunder, provided Xxxx properly
accounts therefor. All such reimbursements shall be payable by the Company on or
before the last day of Xxxx’x taxable year following the taxable year in which
the expense was incurred. The expenses paid by the Company during any taxable
year of Xxxx will not affect the expenses paid by the Company in another taxable
year. This right to reimbursement is not subject to liquidation or
exchange for another benefit.
9. Consequences of Termination
of Employment.
9.1 Death. In the event
of the death of Xxxx during the Term of this Agreement or during the period when
payments are being made pursuant to Sections 6 or 9.2, this Agreement shall
terminate and all obligations to Xxxx shall cease as of the date of death except
that, (a) the Company will pay to the legal representative of his estate in
substantially equal installments the Base Salary until the end of the month of
the first anniversary of Xxxx'x death with each installment treated as a
separate “payment” for purposes of Section 409A of the Code, such that any
payment that would otherwise be payable within 2 ½ months after Xxxx’x taxable
year in which his employment with the Company is terminated or, if later, within
2 ½ months after the end of the Company’s taxable year in which Xxxx’x
employment with the Company is terminated (the “Short Term Deferral Period”) is
exempt from Section 409A of the Code, and (b) all rights and benefits of Xxxx
under the benefit plans and programs of the Company in which Xxxx is a
participant, will be provided as determined in accordance with the terms and
provisions of such plans and programs. Any bonus (or amounts in lieu thereof)
pursuant to Section 5, payable for the fiscal year in which Xxxx'x death occurs,
shall be determined by the Compensation Committee at its meeting following the
end of such fiscal year pro rata to the date of death and promptly paid to
Xxxx'x estate. All awards of restricted stock, stock options and any other
benefits under the Long-Term Incentive Plans shall be handled in accordance with
the terms of the relevant plan and agreements entered into between Xxxx and the
Company with respect to such awards.
9.2 Disability. If Xxxx
shall become permanently incapacitated by reasons of sickness, accident or other
physical or mental disability, as such incapacitation is certified by a
physician chosen by the Company and reasonably acceptable to Xxxx (if he is then
able to exercise sound judgment), and shall therefore be unable to perform any
substantial gainful activity, then the employment of Xxxx hereunder and this
Agreement may be terminated by Xxxx or the Company upon thirty (30) days'
written notice to the other party following such certification. Should Xxxx not
acquiesce (or should he be unable to acquiesce) in the selection of the
certifying doctor, a doctor chosen by Xxxx (or if he is not then able to
exercise sound judgment, by his spouse or personal representative) and
reasonably acceptable to the Company shall be required to concur in the medical
determination of incapacitation, failing which the two doctors shall designate a
third doctor whose decision shall be determinative as of the end of the calendar
month in which such concurrence or third-doctor decision, as the case may be, is
made. After the final certification is made and the 30-day written notice is
provided, the Company shall pay to Xxxx, at such times as Base Salary provided
for in Section 3 of this Agreement would normally be paid, 100% of Base Salary
for the first twelve months following such termination, 75% of Base Salary for
the next twelve-month period and 50% of Base Salary for the remaining period of
what would have constituted the current Term of employment but for termination
by reason of disability with each installment treated as a separate “payment”
for purposes of Section 409A of the Code, such that any payment that would
otherwise be payable during the Short Term Deferral Period is exempt from
Section 409A of the Code. Following the termination pursuant to this Section
9.2, the Company shall pay or provide to Xxxx such other rights and benefits of
participation under the employee benefit plans and programs of the Company to
the extent that such continued participation is not otherwise prohibited by
applicable law or by the express terms and provisions of such plans and
programs. Furthermore, nothing contained in this Section 9.2 shall
preclude Xxxx from receiving the benefit of his target MIP bonus for the initial
year in which a short-term disability occurs pursuant to the provisions of
Section 6. All benefits provided under this Section 9.2 shall be in
replacement of and not in addition to benefits payable under the Company's
short-term and long-term disability plans, except to the extent such disability
plans provide greater benefits than the disability benefits provided under this
Agreement, in which case the applicable disability plan(s) would supersede the
applicable provisions of this Agreement. All awards of restricted
stock, stock options and any other benefits under the Long-Term Incentive Plans
shall be handled in accordance with the terms of the relevant plan and
agreements entered into between Xxxx and the Company with respect to such
awards.
9.3 Due
Cause. The Company may terminate Xxxx'x employment, remove him
as an officer and director of the Company and terminate this Agreement at any
time for Due Cause. In the event of such termination for Due Cause,
Xxxx shall continue to receive Base Salary payments provided for in this
Agreement only through the date of such termination for Due
Cause. Any bonus (or amounts in lieu thereof) pursuant to Section 5,
payable for the fiscal year in which a Due Cause termination occurs, shall be
determined by the Compensation Committee at its meeting following the end of
such fiscal year pro rata to the date of termination and promptly paid to Xxxx,
and Xxxx shall be entitled to no further benefits under this Agreement, except
that any rights and benefits Xxxx may have under the employee benefit plans and
programs of the Company, in which Xxxx is a participant, shall be determined in
accordance with the terms and provisions of such plans and
programs. Xxxx understands and agrees that in the event of the
termination of employment, removal as an officer and director and termination of
this Agreement pursuant to this Section 9.3: (a) All awards of restricted
stock, stock options and any other benefits under the Long-Term Incentive Plans
shall be handled in accordance with the terms of the relevant plan and
agreements entered into between Xxxx and the Company with respect to such awards
and (b) except as otherwise provided in this Section 9.3, the Company shall have
no further obligation to pay any bonus to Xxxx under the terms of the MIP or
this Agreement, but that the obligations of Xxxx under Section 10 shall remain
in full force and effect. The term “Due Cause” shall mean (i) the
willful and continued failure of Xxxx to attempt to perform substantially his
duties with the Company (other than any such failure resulting from Disability),
after a demand for substantial performance is delivered to Xxxx by the Board,
which specifically identifies the manner in which Xxxx has not attempted to
substantially perform his duties, or (ii) the engaging by Xxxx in willful
misconduct which is materially injurious to the Company, monetarily or
otherwise. For purposes of this definition, no act, or failure to
act, on the part of Xxxx shall be considered “willful” unless it is done, or
omitted to be done, by Xxxx in bad faith and without reasonable belief that
Xxxx’x action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, by Xxxx in good faith and in the best interests of the
Company. Notwithstanding the foregoing, Xxxx shall not be deemed to
have been terminated for Due Cause unless and until there have been delivered to
him a copy of a resolution duly adopted by the affirmative vote of at least ¾ of
the Board (excluding Xxxx) at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to Xxxx and he is given an
opportunity, together with counsel, to be heard before the Board) finding that
in the good faith opinion of the Board Xxxx was guilty of conduct set forth
herein and specifying the particulars thereof.
9.4 Without Cause. The
other provisions of this Agreement notwithstanding, the Company may terminate
Xxxx'x employment, remove him as an officer and director and terminate this
Agreement at any time for whatever reason it deems appropriate, with or without
cause and with or without prior notice. In the event of such a termination of
Xxxx'x employment and this Agreement, Xxxx shall have no further obligations of
any kind under or arising out of the Agreement (except for the obligations of
Xxxx under Section 10) and the Company shall be obligated only to promptly pay
Xxxx within the Short Term Deferral Period the following in a lump sum payment:
(a) 200% of Base Salary through the end of the then current Term of this
Agreement (the “Remaining Term”) as provided for under Section 2 of this
Agreement, but no less than a total of twenty-four months of 200% of Base
Salary; and (b) any other amounts due and owing not then paid; provided,
however, that in the event that as a result of such termination of employment
Xxxx would otherwise be entitled to a severance payment (a “Change of Control
Severance Payment”) under Section 4 of the Amended and Restated Severance
Agreement dated as of the 30th day of December, 2008, between Xxxx and
the Company, (the “Severance Agreement”), Xxxx shall be entitled to the amounts
described in clause (b) above and the greater of: (i) the cash severance
benefits described in clause (a) of this sentence and (ii) the cash severance
benefits described in Section 4(a) of the Severance Agreement, but in no event
to both payments.
After the
date of termination under this Section 9.4 or Section 9.6, Xxxx shall not be
treated as an employee for purposes of the Company's employee benefit plans or
programs even though he may continue to receive payments as provided in this
Section 9.4, except: that Xxxx and his eligible dependents shall continue,
to the extent permitted by law, to be covered by health and welfare insurance
plans or programs in which Xxxx and his eligible dependents participate
immediately prior to Xxxx'x termination of employment for the Remaining Term;
provided, however, that if during such time period Xxxx should enter into
employment with a new employer and become eligible to receive comparable
insurance benefits, the continued insurance benefits described herein shall
automatically cease. In the event that Xxxx is ineligible, for whatever reason,
to continue to be so covered with respect to any of the above-referenced plans
or programs, the Company shall provide substantially equivalent coverage through
other sources (determined on an after-tax basis). In the event Xxxx would
otherwise be entitled to a Change of Control Severance Payment under the
Severance Agreement as a result of a termination of employment under this
Section 9.4, Xxxx may elect to receive the continued health and welfare
insurance benefits under this Section 9.4 or under Section 4(b) of the Severance
Agreement, but in no event both benefits.
Furthermore,
in the event of a termination Without Cause, Xxxx shall be presumed to have met
eligibility requirements specified in Section 2.4 of the Xxxxxxxx Replacement
Benefit Plan and the Xxxxxxxx Supplemental Benefit Plan or any successor
thereto. He shall be presumed to have met eligibility requirements for the
Company’s Retiree Health Care coverage at end of the Term provided, however,
that if subsequent to such termination Xxxx should enter into employment with
another employer and become eligible for health insurance benefits, Xxxx’x
eligibility for Retirement Health Care coverage shall automatically cease. All
awards of restricted stock and stock options shall automatically vest and be
exercisable for the full unexpired term of the option.
Xxxx
agrees that the payments described in this Section 9.4 shall be full and
adequate compensation to Xxxx for all damages Xxxx may suffer as a result of the
termination of his employment pursuant to this Sections 9.4 or 9.6, and in
consideration of the payments and benefits provided in this Section 9.4, Xxxx
agrees to execute a Waiver and Release Agreement in the form attached hereto as
Attachment A; provided, however, that, except as specifically provided for under
this Section 9.4, any rights and benefits Xxxx may have under the employee
benefit plans and programs of the Company, in which Xxxx is a participant, shall
be determined in accordance with the terms and provisions of such plans and
programs.
9.5 Employee
Voluntary. In the event Xxxx terminates his employment of his
own volition prior to the end of the term of this Agreement, except for a
termination as described in Section 9.6 and except for termination for Good
Reason as specifically provided otherwise in the Severance Agreement, such
termination shall constitute a voluntary termination and in such event the
Company's only obligation to Xxxx shall be to make Base Salary payments provided
for in this Agreement through the date of such voluntary
termination. Any rights and benefits Xxxx may have under the employee
benefit plans and programs of the Company, in which he is a participant, shall
be determined in accordance with the terms and provisions of such plans and
programs. Xxxx understands and agrees that in the event of the
termination of employment pursuant to this Section 9.5: (a) All awards of
restricted stock, stock options and any other benefits under the Long-Term
Incentive Plans shall be handled in accordance with the terms of the relevant
plan and agreements entered into between Xxxx and the Company with respect to
such awards; and (b) the Company shall have no further obligation to pay any
bonus to Xxxx under the terms of the MIP or this Agreement.
9.6 Failure to Re-elect as Chief
Executive Officer or Director. If at any time prior to the end of the
Term of this Agreement Xxxx is not re-elected to or is removed from the office
of Chief Executive Officer or as a Director of the Company or the Company
materially violates Section 1.1 of this Agreement (for reasons other than Due
Cause), Xxxx shall have the right to terminate his employment with the Company
after first giving the Company written notice of the violation within ninety
(90) days of its initial existence and providing a period of thirty (30) days in
which the violation may be cured and by thereafter, if such violation has not
been corrected or cured, by giving written notice within ninety (90) days of his
termination, and such termination shall be deemed to be termination by the
Company without “Due Cause,” and such termination shall be treated in accordance
with the terms of Section 9.4 above.
9.7 The
Company agrees to continue Xxxx’x coverage under such directors and officers’
liability insurance policies as shall from time to time be in effect for active
officers and employees for not less than six years following Xxxx’x termination
of employment.
10. Covenants of
Xxxx.
10.1 Xxxx
acknowledges that as a result of the services to be rendered to the Company
hereunder, Xxxx will be brought into close contact with many confidential
affairs of the Company, its subsidiaries and affiliates, not readily available
to the public. Xxxx further acknowledges that the services to be
performed under this Agreement are of a special, unique, unusual, extraordinary
and intellectual character; that the business of the Company is international in
scope; that its goods and services are marketed throughout the United States and
various parts of the world and that the Company competes with other
organizations that are or could be located in nearly any part of the United
States and in various parts of the world.
10.2 In
recognition of the foregoing, Xxxx covenants and agrees that, except as is
necessary in providing services under this Agreement or to the extent necessary
to comply with law or the valid order of a court or government agency of
competent jurisdiction, Xxxx will not knowingly use for his own benefit nor
knowingly divulge any Confidential Information and Trade Secrets of the Company,
its subsidiaries and affiliated entities, which are not otherwise in the public
domain and, so long as they remain Confidential Information and Trade Secrets
not in the public domain, will not intentionally disclose them to anyone outside
of the Company either during or after his employment. For the
purposes of this Agreement, "Confidential Information and Trade Secrets" of the
Company means information which is secret to the Company, its subsidiaries and
affiliated entities. It may include, but is not limited to,
information relating to the magazines, books, publications, products, services,
television stations, integrated marketing, interactive media, electronic
commerce, new and future concepts and business of the Company, its subsidiaries
and affiliates, in the form of memoranda, reports, computer software and data
banks, customer lists, employee lists, books, records, financial statements,
manuals, papers, contracts and strategic plans. As a guide, Xxxx is
to consider information originated, owned, controlled or possessed by the
Company, its subsidiaries or affiliated entities which is not disclosed in
printed publications stated to be available for distribution outside the
Company, its subsidiaries and affiliated entities as being secret and
confidential. In instances where doubt does or should reasonably be
understood to exist in Xxxx'x mind as to whether information is secret and
confidential to the Company, its subsidiaries and affiliated entities, Xxxx
agrees to request an opinion, in writing, from the Board of
Directors.
10.3 Anything
to the contrary in this Section 10 notwithstanding, Xxxx shall disclose to the
public and discuss such information as is customary or legally required to be
disclosed by a Company whose stock is publicly traded, or that is otherwise
legally required to disclose, or that is in the best interests of the Company to
do so.
10.4 Xxxx
will deliver promptly to the Company on the termination of his employment with
the Company, or at any other time the Company may so request, all memoranda,
notes, records, reports and other documents relating to the Company, its
subsidiaries and affiliated entities, and all property owned by the Company, its
subsidiaries and affiliated entities, which Xxxx obtained while employed by the
Company, and which Xxxx may then possess or have under his control.
10.5 During
and for a period of twenty-four (24) months after the termination of employment
with the Company (except that the time period of such restrictions shall be
extended by any period during which Xxxx is in violation of this Section 10.5),
Xxxx will not knowingly interfere with, disrupt or attempt to disrupt, any then
existing relationship, contractual or otherwise between the Company, its
subsidiaries or affiliated entities, and any customer, client, supplier, or
agent, or knowingly solicit, or assist any other entity in soliciting for
employment, any person known to Xxxx to be an agent or executive employee of the
Company, its subsidiaries, or affiliated entities, it being understood that the
right to seek or enter into contractual arrangements with independent
contractors, including, without limitation, consultants, professionals, authors,
advertisers and the like, shall not be abridged by reason of this Section
10. In addition, in the event of a voluntary termination under
Section 9.5, during and for a period of twenty-four (24) months after the
termination of employment with the Company, Xxxx will not render services
directly or indirectly as an employee, officer, director, consultant,
independent contractor or in any other capacity to any person or entity that is
a competitor of the Company.
10.6 Xxxx
will promptly disclose to the Company all inventions, processes, original works
of authorship, trademarks, patents, improvements and discoveries related to the
business of the Company, its subsidiaries and affiliated entities (collectively
"Developments"), conceived or developed during Xxxx'x employment with the
Company and based upon information to which he had access during the term of
employment, whether or not conceived during regular working hours, through the
use of the Company time, material or facilities or otherwise. All
such Developments shall be the sole and exclusive property of the Company, and
upon request Xxxx shall deliver to the Company all outlines, descriptions and
other data and records relating to such Developments, and shall execute any
documents deemed necessary by the Company to protect the Company's rights
hereunder. Xxxx agrees upon request to assist the Company to obtain
United States or foreign letters patent and copyright registrations covering
inventions and original works of authorship belonging to the Company
hereunder. If the Company is unable because of Xxxx'x mental or
physical incapacity to secure Xxxx'x signature to apply for or to pursue any
application for any United States or foreign letters patent or copyright
registrations covering inventions and original works of authorship belonging to
the Company hereunder, then Xxxx hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as his agent and attorney in
fact, to act for and in his behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by him. Xxxx
hereby waives and quitclaims to the Company any and all claims, of any nature
whatsoever, that he may hereafter have for infringement of any patents or
copyright resulting from any such application for letters patent or copyright
registrations belonging to the Company hereunder.
10.7 Xxxx
agrees that the remedy at law for any breach or threatened breach of any
covenant contained in this Section 10 may be inadequate and that the Company, in
addition to such other remedies as may be available to it, in law or in equity,
shall be entitled to injunctive relief without bond or other
security.
10.8 Although
the restrictions contained in Sections 10.1, 10.2, 10.4 and 10.5 above are
considered by the parties hereto to be fair and reasonable in the circumstances,
it is recognized that restrictions of such nature may fail for technical
reasons, and accordingly it is hereby agreed that if any of such restrictions
shall be adjudged to be void or unenforceable for whatever reason, but would be
valid if part of the wording thereof were deleted, or the period thereof reduced
or the area dealt with thereby reduced in scope, the restrictions contained in
Section 10.1, 10.2, 10.4 and 10.5 shall be enforced to the maximum extent
permitted by law, and the parties consent and agree that such scope or wording
may be accordingly judicially modified in any proceeding brought to enforce such
restrictions.
10.9 Notwithstanding
that Xxxx'x employment hereunder may expire or be terminated as provided in
Sections 2 or 9 above, this Agreement shall continue in full force and effect
insofar as is necessary to enforce the covenants and agreements of Xxxx
contained in this Section 10. In addition, the Company obligations
under Sections 9, 11 and 19 shall continue in full force and effect with respect
to Xxxx or his estate.
11. Arbitration.
The
parties shall use their best efforts and good will to settle all disputes by
amicable negotiations. The Company and Xxxx agree that, with the
express exception of any dispute or controversy arising under Section 9.2 or
Section 10 of this Agreement or as may be required under Section 3(g) of the
Severance Agreement, any controversy or claim arising out of or in any way
relating to Xxxx'x employment with the Company, including, without limitation,
any and all disputes concerning this Agreement and the termination of this
Agreement that are not amicably resolved by negotiation, shall be settled by
arbitration in Des Moines, Iowa, or such other place agreed to by the parties,
as follows:
(a)
Any such arbitration shall be heard before an arbitrator who shall be
impartial. Except as the parties may otherwise agree, the arbitrator
shall be appointed by the American Arbitration Association in accordance with
its rules and procedures. In determining the appropriate background
of the arbitrator, the appointing authority shall give due consideration to the
issues to be resolved, but its decision as to the identity of the arbitrator
shall be final.
(b)
An arbitration may be commenced by any party to this Agreement by the service of
a written Request for Arbitration upon the other affected party. Such
Request for Arbitration shall summarize the controversy or claim to be
arbitrated, and shall be referred by the complaining party to the appointing
authority for appointment of arbitrators ten (10) days following such
service. If an arbitrator is not appointed by the appointing
authority within sixty (60) days following such reference, any party may apply
to any court within the State of Iowa for an order appointing arbitrators
qualified as set forth below. No Request for Arbitration shall be
valid if it relates to a claim, dispute, disagreement or controversy that would
have been time barred under the applicable statute of limitations had such
claim, dispute, disagreement or controversy been submitted to the courts of the
State of Iowa.
(c)
Judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
(d)
It is intended that controversies or claims submitted to arbitration under this
Section 11 shall remain confidential, and to that end it is agreed by the
parties that neither the facts disclosed in the arbitration, the issues
arbitrated, nor the views or opinions of any persons concerning them, shall be
disclosed by third persons, any employees of the Company involved in such
arbitration proceedings, or Xxxx’x or the Company’s representatives, at any
time, except to the extent necessary to enforce an award or judgment or as
required by law or in response to legal process or in connection with such
arbitration. In addition, Xxxx shall be entitled to disclose the
facts disclosed in arbitration, the issues arbitrated, and the views or opinions
of any persons concerning them to legal and tax advisors so long as such
advisors agree to be bound by the terms of this Agreement.
12. Successors and
Assigns.
12.1 Assignment by the
Company. This Agreement shall inure to the benefit of and
shall be binding upon the successors and assigns of the Company.
12.2 Assignment by
Xxxx. Xxxx may not assign this Agreement or any part thereof;
provided, however, that nothing herein shall preclude one or more beneficiaries
of Xxxx from receiving any amount that may be payable following the occurrence
of his legal incompetency or his death and shall not preclude the legal
representative of his estate from receiving such amount or from assigning any
right hereunder to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto under the laws
of the intestacy applicable to his estate.
13. Governing
Law.
This
Agreement shall be deemed a contract made under, and for all purposes shall be
construed in accordance with, the laws of the State of Iowa without reference to
the principles of conflict of laws.
14. Entire
Agreement.
This
Agreement and those plans and agreements referenced herein contain all the
understandings and representations between the parties hereto pertaining to the
subject of the employment of Xxxx by the Company and supersede all undertakings
and agreements, whether oral or in writing, if any there be, previously entered
into by them with respect thereto.
15. Amendment or Modification;
Waiver.
No
provision of this Agreement may be amended or modified unless such amendment or
modification is agreed to in writing, signed by Xxxx and by a duly authorized
officer of the Company and approved in advance by the Compensation
Committee. Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the other party of
any condition or provision of the Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time.
16. Notices.
Any
notice to be given hereunder shall be in writing and delivered personally or
sent by overnight mail, such as Federal Express, addressed to the party
concerned at the address indicated below or to such other address as such party
may subsequently give notice of hereunder in writing:
If to
Company:
Chairman
of the Compensation Committee
Board of
Directors
Xxxxxxxx
Corporation
0000
Xxxxxx Xxxxxx
Xxx
Xxxxxx, Xxxx 00000-0000
with a
copy to:
Xxxx
Xxxxxx, Esquire
Vice
President-General Counsel & Secretary
Xxxxxxxx
Corporation
0000
Xxxxxx Xxxxxx
Xxx
Xxxxxx, Xxxx 00000-0000
If to
Xxxx:
Xxxxxxx
X. Xxxx
Chief
Executive Officer Xxxxxxxx Corporation
0000
Xxxxxx Xxxxxx
Xxx
Xxxxxx, Xxxx 00000-0000
with a
copy to:
Xxxxx X.
Xxxxx, Esquire
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
0000 Xxxx
Xxxxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000
17. Severability.
In the
event that any provision or portion of this Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining provisions or portions of
this Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law.
18. Withholding.
Anything
to the contrary notwithstanding, all payments required to be made by the Company
hereunder to Xxxx or his beneficiaries, including his estate, shall be subject
to withholding and deductions as the Company may reasonably determine it should
withhold or deduct pursuant to any applicable law or regulation. In
lieu of withholding or deducting, such amounts, in whole or in part, the Company
may, in its sole discretion, accept other provision for payment as permitted by
law, provided it is satisfied in its sole discretion that all requirements of
law affecting its responsibilities to withhold such taxes have been
satisfied.
19. Deferred
Payments.
Any
amounts required under this Agreement to be paid to Xxxx that Xxxx can and does
elect to defer under any Company benefit plan or program shall be deemed to have
been paid to him for purposes of this Agreement; provided, however, that if the
Company breaches the terms of any deferred compensation plan, arrangement or
agreement with respect to which such amounts are to be paid, Xxxx may claim a
breach of this Agreement.
Notwithstanding
anything in this Agreement or elsewhere to the contrary:
(a) If
payment or provision of any amount or other benefit that is “deferred
compensation” subject to Section 409A of the Code at the time otherwise
specified in this Agreement or elsewhere would subject such amount or benefit to
additional tax pursuant to Section 409A(a)(1)(B) of the Code, and if payment or
provision thereof at a later date would avoid any such additional tax, then the
payment or provision thereof shall be postponed to the earliest date on which
such amount or benefit can be paid or provided without incurring any such
additional tax. In the event this Section requires a deferral of any
payment, such payment shall be accumulated and paid in a single lump sum on such
earliest date together with interest for the period of delay, compounded
annually, equal to the prime rate (as published in The Wall Street Journal), and
in effect as of the date the payment should otherwise have been
provided.
(b) If
any payment or benefit permitted or required under this Agreement, or otherwise,
is reasonably determined by either party to be subject for any reason to a
material risk of additional tax pursuant to Section 409A(a)(1)(B) of the Code,
then the parties shall promptly agree in good faith on appropriate provisions to
avoid such risk without materially changing the economic value of this Agreement
to either party.
20. Survivorship.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
21. Duty to Mitigate:
Set-off.
Xxxx
shall not be required to seek employment, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned by Xxxx
as the result of employment by another employer after the date of termination of
Xxxx'x employment, or otherwise, except as may be provided under Section 9.4
with respect to health and welfare insurance benefits. 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 that the
Company may have against Xxxx or others, except to be extent such employment
violates Section 10.5.
22. Headings.
Headings
of the sections of this Agreement are intended solely for convenience and no
provision of this Agreement is to be construed by reference to the title of any
section.
23. Knowledge and
Representation.
Xxxx
acknowledges that the terms of this Agreement have been fully explained to him,
that Xxxx understands the nature and extent of the rights and obligations
provided under this Agreement, and that Xxxx has been represented by legal
counsel in the negotiation and preparation of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have re-executed and acknowledged this
Agreement as of the date set forth below.
XXXXXXXX
CORPORATION
By: _/s/ Xxxx X.
Zieser______________
Xxxx X. Xxxxxx
Chief Development Officer,
General Counsel and
Secretary
XXXXXXX
X. XXXX
/s/ Xxxxxxx X.
Xxxx
Date: August
24, 2009
