EXHIBIT (10.22)
(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EMPLOYMENT AGREEMENT
AGREEMENT, dated January 3, 2001, between CONSUMER
PROGRAMS INCORPORATED, a Missouri corporation (the
"Corporation"), and XXXXXXX X. XXXXXX (the "Executive").
WHEREAS, the Corporation currently employs the Executive
in the capacity of Senior Executive Vice President of the
Corporation/President Sears Portrait Studios, and the Executive
is one of the key executives of the Corporation;
WHEREAS, Executive, during his or her employment, has been
and will be entrusted with confidential information;
WHEREAS, Executive and the Corporation recognize and
acknowledge that, to ensure the continued growth and stability
of the Corporation, it is necessary to obtain an agreement from
Executive not to compete with the Corporation and not to
disclose confidential information of the Corporation; and
WHEREAS, the Corporation desires that the Executive
continue in the employ of the Corporation as a result of his or
her experience with the Corporation and his or her potential
for making future contributions to the Corporation, and the
Executive is willing to make a commitment to remain in such employ
upon the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
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(a) "Affiliated Companies" shall mean any
corporation (or other business entity) controlling, controlled
by or under common control with the Corporation.
(b) "Beneficiary" shall mean the person designated
in writing by the Executive as his or her beneficiary under
this Agreement, or in the absence of such designation, his or
her estate.
(c) "Benefit Plans" shall mean all benefit plans of
the Corporation and its Affiliated Companies, including, without
limitation, medical, dental, disability, group life, accidental
death and travel accident insurance plans and programs and all
other benefits available to employees of the Corporation and
its Affiliated Companies.
(d) "Cause" shall mean:
(i) prior to a Change of Control;
(A) Conduct or activity of the Executive
materially detrimental to the Corporation's reputation or
business operations;
(B) Gross or habitual neglect or breach of
duty or misconduct of the Executive in discharging the duties
of his or her position; or
(C) Prolonged absence by the Executive
from his or her duties (other than on account of illness or
disability) without the consent of the Corporation.
(ii) after a Change of Control;
(A) an act or acts of dishonesty on the
Executive's part which are intended to result in his or her
substantial personal enrichment at the expense of the
Corporation;
(B) Any material violation by the
Executive of his or her
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obligations and covenants pursuant to this Agreement which is
demonstrably willful and deliberate on the Executive's part and
which results in material injury to the Corporation; or
(C) The conviction of Executive of a
felony or of a crime involving moral turpitude.
(e) "Change of Control" shall mean a change in
control of a nature that would be required to be reported in
response to Item 1(a) of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended ("Exchange
Act") or would have been required to be so reported but for the
fact that such event had been "previously reported" as that term
is defined in Rule 12b-2 of Regulation 12B of the Exchange Act
unless the transactions that give rise to the change in control
are approved or ratified by a majority of the members of the
Incumbent Board of CPI Corp. who are not employees of the
Corporation; provided that, without limitation, notwithstanding
anything herein to the contrary, such a change in control shall
be deemed to have occurred if, (i) any Person is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of CPI Corp.
representing 40% or more of the combined voting power
of CPI Corp.'s then outstanding securities ordinarily (apart
from rights accruing under special circumstances) having the
right to vote at elections of directors ("Voting Securities"),
(ii) individuals who constitute the Board of CPI Corp. on the
date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election,
or nomination for election by CPI Corp.'s shareholders, was
approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board (either by a specific vote or by
approval of the proxy
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statement of CPI Corp. in which such person is named as a
nominee for director, without objection to such nomination)
shall be, for purposes of this clause (ii), considered as
though such person were a member of the Incumbent Board, or
(iii) approval by the stockholders of CPI Corp. of a
reorganization, merger or consolidation, in each case, with
respect to which persons who were the stockholders of CPI Corp.
immediately prior to such reorganization, merger or consolidation
do not, immediately thereafter, own, directly or indirectly, more
than 50% of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or a
liquidation or dissolution of CPI Corp. or of the sale of all or
substantially all of the assets of CPI Corp. For purposes of
this Agreement, the term "Person" shall mean and include any
individual, corporation, partnership, group, association or other
"person," as such term is used in Section 14(d) of the Exchange
Act, other than CPI Corp., the Corporation or an Affiliated
Company or any employee benefit plan(s) sponsored or maintained
by the Corporation or any Affiliated Company.
(f) "Code" shall mean the Internal Revenue Code of
1986, as may be amended from time to time.
(g) "Continuing Directors" shall have the meaning
set forth in Paragraph 3(G) of Article Ten of CPI Corp.'s
Certificate of Incorporation.
(h) "Fiscal Year" shall mean the Fiscal Year of the
Corporation.
(i) "Permanent Disability" shall mean the inability
of Executive to perform the services contemplated under this
Agreement for a period of at least one hundred eighty (180)
consecutive calendar days or for thirty-five (35) weeks (whether
or not consecutive) in any
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twelve (12) month period on account of any sickness, injury
or other infirmity or disability.
(j) "Retirement" shall mean the Executive's
voluntary or involuntary termination of employment with the
Corporation except for termination on account of (i) Cause as
defined in Subsection 6(b) hereof, (ii) death or (iii)
Permanent Disability before attaining age sixty-five (65).
(k) "Savings Plans" shall mean all compensation
plans and programs, including without limitation, savings
plans, stock option plans, and retirement plans of the
Corporation and its Affiliated Companies.
(l) "Term of Employment" shall have the meaning set
forth in Section 3 hereof.
2. EMPLOYMENT. The Corporation hereby employs and
engages the services of the Executive as one of its key
executives initially in the position of President of the
Corporation Portrait Studios for the Term of Employment set
forth in Section 3. The Executive agrees to serve the
Corporation for the Term of Employment as provided herein.
3. TERM OF EMPLOYMENT. The Executive's Term of
Employment shall be a period commencing on the date hereof and
ending one (1) year thereafter; provided, however, that upon
the expiration of the aforesaid period (the "Expiration Date")
and upon each anniversary of the Expiration Date, the Term of
Employment shall automatically be extended for an additional one
(1) year period unless Executive or the Corporation notifies the
other in writing at least sixty (60) days prior to the
commencement of such one (1) year period of an intention
to terminate this Agreement. Notwithstanding anything herein
to the contrary, the Term of Employment shall
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terminate upon Executive's death or Permanent Disability as set
forth in subsection 7(a) hereof or upon the Corporation's
termination of Executive's employment for Cause pursuant to
subsection 7(b) hereof. The Term of Employment shall also
terminate upon the Executive's attainment of age 65, unless the
Board of Directors requests that the Executive extend his or
her service to the Corporation after age 65. No such extension
after age 65 shall exceed one year, provided that the Term may
thereafter be renewed from year to year by request of the Board
of Directors.
(4) EMPLOYMENT PRIOR TO CHANGE OF CONTROL. The following
terms shall apply to Executive's employment prior to a Change
of Control:
(a) POSITION AND DUTIES.
(i) The Executive shall serve the Corporation
in such capacity as the Corporation may determine.
(ii) The Executive agrees to devote his or her
full business time during normal business hours to the business
and affairs of the Corporation (except as otherwise provided
herein) and to use his or her best efforts to promote the
interests of the Corporation and its Affiliated Companies and
to perform faithfully and efficiently the responsibilities
assigned to him or her in accordance with the terms of this
Agreement to the extent necessary to discharge such
responsibilities, except for;
(A) Service on corporate, civic or
charitable boards or committees not significantly interfering
with the performance of such responsibilities; and
(B) Periods of vacation and sick leave to
which he or she is entitled. It is expressly understood and
agreed that the Executive's continuing service on any boards
and committees with which he or she shall be connected, as a
member or otherwise, as of
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the date hereof, or any such service approved by the
Corporation during the Term of Employment, shall not be deemed
to interfere with the performance of the Executive's services
to the Corporation pursuant to this subparagraph 4(a).
(b) COMPENSATION AND BENEFITS.
(i) BASE SALARY. The Executive shall receive
an annual base salary (the "Base Salary") in equal installments
payable bi-weekly or at such other intervals as salary is
normally paid by the Corporation to its employees, at an annual
rate established by the Corporation and any Affiliated
Companies as of the date hereof. The Base Salary shall be
reviewed at least once each year and may be changed annually as
of the commencement of any Fiscal Year any time and from time to
time by action of the Board of Directors of CPI Corp., or
any committee thereof or any individual having authority to take
such action, in accordance with the Corporation's regular
practices. Any change in the Base Salary shall not serve to
limit or reduce any other obligation of the Corporation
hereunder.
(ii) ANNUAL BONUS. In addition to the Base
Salary, the Executive shall be awarded for each Fiscal Year
during the Term of Employment an annual bonus pursuant to the
bonus plan or program of the Corporation applicable to the
Executive, any other incentive plan or program of the Corporation
applicable to the Executive or otherwise in accordance with the
Corporation's regular practice (the "Annual Bonus").
(iii) OTHER COMPENSATION PLANS. The Executive's
entitlement to participate in the Savings Plans shall be
determined in accordance with the Corporation's regular
practice. Prior to a Change of Control, nothing herein shall be
construed to prevent the Corporation from amending or altering
any such plans in accordance with the terms thereof. All
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agreements between the Corporation and the Executive existing
on the date hereof providing for special pension, retirement or
similar benefits are continued by this Agreement.
(iv) BENEFIT PLANS. The Executive, his or her
spouse and/or his or her dependents shall be entitled to
participate in all other Benefit Plans in accordance with the
Corporation's regular practice.
(v) EXPENSES. The Executive shall be entitled
to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in discharging his or her duties in
accordance with the regular policies and procedures of the
Corporation.
5. EMPLOYMENT FOLLOWING CHANGE OF CONTROL. The
following terms shall apply to Executive's employment after a
Change of Control:
(a) POSITION AND DUTIES. The Executive's position,
authority and responsibilities, the type of work he or she is
asked to perform, and the status and stature of the people with
whom he or she is asked to work, shall be comparable to that
existing with respect to the Executive as of the date
immediately prior to the Change of Control. The Executive's
services shall be performed at the location where the Executive
was employed as of the date immediately prior to the Change of
Control, or at such other location as may be mutually agreed
between the Corporation and the Executive.
(b) COMPENSATION AND BENEFITS.
(i) BASE SALARY. The Executive shall receive
a Base Salary at least equivalent to the rate in effect
immediately prior to the date of the Change of Control. The
Base Salary shall be reviewed at least once each year and may
be increased at any time and from time to time by action of the
Board of Directors of CPI Corp. or any committee thereof having
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authority to take such action, in accordance with the
Corporation's regular practices. Any increase in the Base
Salary shall not serve to limit or reduce any other obligation
of the Corporation hereunder, and after such increase the Base
Salary shall not be reduced from such increased level.
(ii) ANNUAL BONUS. In addition to the Base
Salary, the Executive shall be awarded for each Fiscal Year an
annual bonus Annual Bonus in cash at least equal to the highest
bonus paid or payable to the Executive in respect of any of the
Fiscal Years during the three Fiscal Years immediately prior to
the date of the Change of Control.
(iii) OTHER COMPENSATION PLANS. The Executive
shall be entitled to participate in the Savings Plans on a
basis at least equivalent to that provided by the Corporation
and its Affiliated Companies to the Executive immediately prior
to the date of the Change of Control.
(iv) BENEFIT PLANS. The Executive, his or her
spouse, or his or her dependents, as the case may be, shall be
entitled to receive all amounts which he or she, his or her
spouse or his or her dependents are or would have been entitled
to receive as benefits under all Benefit Plans on a basis at
least as favorable to the Executive as on the date immediately
prior to the date of the Change of Control.
(v) EXPENSES. The Executive shall be entitled
to receive prompt reimbursement for all reasonable expenses
incurred by Executive in discharging his or her duties in
accordance with policies and procedures at least as favorable to
the Executive as in effect on the date immediately prior to the
date of the Change of Control.
(vi) OFFICE AND SUPPORT STAFF. The Executive
shall be entitled to an
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office or offices of a size and with furnishings and other
appointments, and to secretarial and other assistance, at
least equal to those provided to the Executive as of the date
immediately prior to the date of the Change of Control.
(vii) NO REDUCTION. After a Change of Control,
the Corporation's obligation to make the payments provided for
herein and otherwise to perform its obligations hereunder shall
not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or
other right which the Corporation may have against the Executive
or others.
6. EXECUTIVE BENEFITS. Executive shall be entitled to
receive the following additional benefits:
(a) DEATH BENEFITS. In the event of Executive's
death, unless (i) Executive's employment with the Corporation
was terminated for Cause or (ii) Executive (or his or her
Beneficiary) is entitled to receive Supplemental Retirement
Benefits pursuant to subsection 6(c), the Corporation shall pay
to Executive's Beneficiary an annual death benefit equal to
forty percent (40%) (but not to exceed $150,000) of the highest
annual Base Salary paid to Executive from and after fiscal year
1997, payable in equal monthly installments commencing with the
month following the month of Executive's death and ending with
the two-hundred fortieth (240th) month following the month of
Executive's death.
(b) DISABILITY BENEFITS. In the event of
Executive's Permanent Disability prior to attaining age 65 and
prior to termination of employment with the Corporation, unless
Executive's employment with the Corporation was terminated for
Cause, the Corporation shall pay Executive annual disability
benefits equal to forty percent (40%) (but not to exceed
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$150,000) of the highest annual Base Salary paid to Executive
from and after fiscal year 1997, payable in equal monthly
installments, commencing with the month following the month in
which Executive terminated employment as a result of Permanent
Disability and ending on the earlier of (i) the month in which
Executive reaches age 65 or (ii) the month of his or her death.
Disability benefits pursuant to this subsection (b) shall be
reduced by any amounts paid to Executive under the
Corporation's long-term disability insurance policy, but shall
not be reduced for any payments received by Executive from
Social Security or from any disability insurance coverage
individually owned by Executive.
(c) SUPPLEMENTAL RETIREMENT BENEFITS.
(i) Unless Executive's employment with the
Corporation was terminated for Cause, the Corporation shall pay
Executive retirement benefits for twenty (20) years in an
annual amount equal to forty percent (40%) (but not to exceed
$150,000) of the highest annual Base Salary paid to Executive
from and after fiscal year 1997 ("Supplemental Retirement
Benefits").
(ii) Supplemental retirement benefits shall be
payable in two hundred forty (240) equal monthly installments
commencing with the month following the later of (i) the month
of Executive's Retirement or (ii) the month during which
Executive reaches age sixty-five (65). If Executive dies prior
to the end of the two hundred forty (240) month period during
which Supplemental Retirement Benefits are payable,
Supplemental Retirement Benefits shall be payable during the
remainder of such 240-month period
to his or her Beneficiary.
(iii) Notwithstanding anything herein to the
contrary, in the event of Executive's termination of employment
with the Corporation prior to attaining age 65 as a result
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of Permanent Disability, if Executive attains age 65 and his or
her employment with the Corporation was not terminated for
Cause, the Corporation shall pay to Executive the Supplemental
Retirement Benefits set forth in this subsection 6(c),
commencing as of the month following the month in which
Executive attains age 65; provided, however, that any
Supplemental Retirement Benefits paid pursuant to this
sentence shall be reduced by any amounts paid to Executive
under the Corporation's long-term disability insurance policy
(but shall not be reduced by any payments received by Executive
from Social Security or from an disability insurance coverage
individually owned by Executive) for the same period.
(d) SURVIVABILITY OF DEATH AND SUPPLEMENTAL
RETIREMENT BENEFITS. In the event of Executive's Retirement or
death, Executive's entitlement to death benefits pursuant to
subsection 6(a) hereof or Supplemental Retirement Benefits
pursuant to subsection 6(c) hereof shall survive the Term of
Employment and Executive or his or her Beneficiary shall be
entitled to such death benefits or Supplemental Retirement
Benefits based on the same terms and conditions as would have
been applicable had his or her death or Retirement, as the case
may be, occurred during the Term of Employment.
7. TERMINATION OF EMPLOYMENT.
(a) DEATH OR PERMANENT DISABILITY. Except for the
obligations of the Corporation set forth in this subsection
7(a), this Agreement shall terminate automatically upon the
Executive's death or Permanent Disability. In the event of
such termination, the Corporation shall pay to the Executive's
Beneficiary or, in the event of Permanent Disability, the
Executive or his or her legal representative, all benefits and
Base Salary accrued through the date of termination, including,
without limitation, amounts payable under any plan referred to
in
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subsection 4(b) plus any benefits to which Executive may be
entitled pursuant to subsection 6(a), subsection 6(b) or
subsection 6(c) hereof.
(b) CAUSE. The Corporation may terminate the
Executive's employment for Cause. If the Executive's
employment is terminated for Cause, the Corporation shall pay
the Executive his or her full accrued Base Salary through the
effective date of the termination of his or her employment
(which shall be no earlier than the date of receipt of notice
thereof) at the rate in effect at the time of such termination,
and the Corporation shall have no further obligations to the
Executive under this Agreement
(c) NOTIFICATION PRIOR TO ONE YEAR EXTENSION.
Either Executive or the Corporation may terminate this
Agreement by notifying the other party in writing of an
intention to do so at least sixty (60) days prior to the
commencement of a one-year extension period described in
Section 3 hereof.
(d) PAYMENTS FOR INVOLUNTARY TERMINATION WITHOUT
CAUSE.
(i) If prior to a Change of Control:
(A) the Corporation terminates Executive's
employment (other than for Cause pursuant to subsection 7(b)
hereof) or
(B) the Executive's employment terminates
by reason of the Corporation's termination of this Agreement
pursuant to subsection 7(c) hereof the Corporation shall pay
Executive following such involuntary termination his or her
full accrued Base Salary through the date of termination of
employment plus an amount equal to two hundred percent (200%) of
the highest annual Base Salary for the fiscal year in which
termination occurs paid or payable to Executive from and after
fiscal year 1999 (the "Severance Base Payment"), payable in
fifty-two (52) equal bi-
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weekly installments or at such other intervals as salary is
normally paid by the Corporation to its employees. In
addition, within ninety (90) days after conclusion of the
Fiscal Year in which the Executive's employment is
involuntarily terminated without Cause, the Corporation shall
pay Executive the Annual Bonus he or she would have earned for
that Fiscal Year, if any, prorated on the basis of the percentage
of the Fiscal Year preceding such termination of Executive's
employment. The payments pursuant to this subsection 7(d)(i)
and any payments to which Executive may be entitled pursuant to
subsections 6(a), 6(b), and 6(c) shall be in full discharge of
any claims, actions, demands or damages of every nature and
description which Executive might have or might assert against
the Corporation or any Affiliated Company in connection with or
arising from the termination of Executive's employment or the
termination of this Agreement.
(ii) If following a Change of Control:
(A) the Corporation terminates Executive's
employment (other than for Cause pursuant to subsection 7(b)
hereof) or
(C) the Executive's employment terminates
by reason of the Corporation's termination of this Agreement
pursuant to subsection 7(c) hereof the Corporation shall, at
the time of such involuntary termination, make a lump sum cash
payment to Executive of the Severance Base Payment and an
amount in cash equal to the highest Annual Bonus paid or
payable to the Executive in respect of any of the three Fiscal
Years immediately prior to the Change of Control. In addition
to the payment pursuant to this subsection 7(d)(ii) and any
payments to which Executive may be entitled pursuant to
subsections 6(a), 6(b) and 6(c), Executive shall be entitled to
all remedies available under this Agreement or at law in respect
of any damages suffered by Executive as a result of an
involuntary termination
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of employment without Cause.
(iii) Notwithstanding the provisions of
subsections 7(d)(i) and (ii) above, unless the Board of
Directors requests that the Term of Employment be extended
after Executive's attaining age 65 in accordance with the
provision of subsection 5(b) above
(A) no Severance Base Payment shall be
payable to the Executive after age 65; and
(B) the amount of Severance Base Payment
payable to the Executive shall be reduced by an amount equal to
one month of his Base Salary for every month of Executive's
employment after age 63. If, however, the Term of Employment
is extended at the request of the Board of Directors after
Executive's attaining age 65, the Severance Base Payment shall
continue to be payable and shall not be subject to reduction
pursuant to subsection 7(d)(ii)(B) to the extent of extension.
(iv) For purposes of this Section 7, any
reduction in Base Salary of more than 10% shall be deemed
termination by failure to renew pursuant to subsection 7(c)
above.
(e) EXERCISE OF OPTIONS. In the event of
termination of Executive's employment (other than for Cause
pursuant to subsection 7(b) hereof), as a result of Executive's
death, Permanent Disability, involuntary termination or by
reason of the Corporation's termination of this Agreement
pursuant to subsection 7(c) hereof, all unvested options then
held by the Executive under any stock option plans of the
Corporation shall vest immediately and become exercisable with
respect to one hundred percent (100%) of the shares covered by
such options upon the effective date of such termination and all
options then held by the Executive
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under such plans shall be exercisable until the earlier of (i)
the expiration dates of such options as in effect immediately
prior to such termination or (ii) twelve (12) months after the
effective date of such termination.
8. GROSS-UP FOR PARACHUTE TAX.
(a) GENERAL. In the event that following a Change
of Control Executive becomes entitled to any payments (whether
pursuant to this Employment Agreement or any other plan,
arrangement or agreement) from the Corporation in the nature of
compensation ("Parachute Payments") that in the opinion of a
certified public accounting firm (selected in the manner set
forth in subsection 8(b)) or that under the provisions of a
notice of assessment from the Internal Revenue Service causes
imposition of the tax under Section 4999 of the Code or any
similar tax that may hereafter be imposed (the "Excise Tax"),
the Corporation shall pay Executive, at the time specified in
subsection 8(d), the Gross-Up Payment (as determined in
accordance with subsection 8(c)).
(b) SELECTION OF C.P.A. Within fifteen (15) days
after any termination of Executive's employment following a
Change of Control, the majority of the Continuing Directors as
of the date immediately prior to the Change of Control shall
select a certified public accounting firm (the "C.P.A.") to
determine the amount, if any, of the Excise Tax and the
amount, if any, of the Gross-Up Payments.
(c) AMOUNT OF GROSS-UP PAYMENTS.
(i) The Gross-Up Payments shall be in an
amount such that the net amount retained by Executive with
respect to the Parachute Payments and Gross-Up Payments, after
deduction of any Excise Tax to which the Parachute Payments may
be subject and any
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federal, state, and local income taxes and Excise Tax upon the
Gross-Up Payments, shall be equal to the gross amount of the
Parachute Payments.
(ii) For purposes of determining the amount of
the Gross-Up Payments, Executive shall be deemed to pay federal
income taxes at the applicable rate of federal income taxation
for the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the applicable rate of
taxation for the calendar year in which the Gross-Up Payment is
to be made.
(iii) In the event that the Excise Tax is
subsequently determined to exceed the amount taken into account
at the time the Gross-Up Payment is made pursuant to subsection
8(d) hereof (including any excess attributable to any Parachute
Payments the existence or amount of which could not be
accurately determined at the time of the Gross-Up Payment), the
Corporation shall make an additional Gross-Up Payment in respect
of such excess (plus any interest and addition to tax payable
with respect to such excess) within fifteen (15) days after the
amount of such excess is determined by the C.P.A. or by the
Internal Revenue Service (the "IRS") in a notice of assessment.
(d) TIMING OF GROSS-UP PAYMENTS. Gross-Up Payments
other than Gross-Up Payments pursuant to subsection 8(c)(iii)
shall be paid not later than forty-five (45) days following
payment of any Parachute Payments to which the Gross-Up
Payments are attributable; provided, however, that if the
amount of such Gross-Up Payment or portion thereof cannot be
finally determined on or before such day, the Corporation shall
pay to Executive on such day an estimate, as determined in good
faith by the Corporation, of the minimum amount of such
payments and shall pay the remainder of such payments (together
with interest at the applicable
17
federal rate provided in Section l274(d) of the Code) as soon
as the amount thereof can be determined by the C.P.A., but in
no event later than forty-five (45) days after payment of such
Parachute Payments.
(e) CORPORATION'S RIGHT TO DESIGNATE TAX
REPRESENTATIVE; Assignment of Refund Proceeds. If the IRS
proposes an assessment of the Excise Tax against Executive or
proposes an additional assessment of Excise Tax in excess of
the amount previously reported by Executive:
(i) Executive shall within five (5) days after
receipt from the IRS of notice of the proposed Excise Tax
assessment notify the Corporation in writing and furnish the
Corporation with copies of all correspondence from the IRS
relating to the proposed Excise Tax assessment.
(ii) The Corporation shall be authorized to
designate an attorney and/or accountant (the "Tax
Representative") to serve as Executive's exclusive
representative with respect to all proceedings with the IRS
relating to the proposed Excise Tax assessment, including but
not limited to negotiating a settlement or compromise of the
proposed Excise Tax assessment, filing a claim for refund with
respect thereto, and seeking judicial review of any
disallowance of a claim for refund. Executive hereby agrees to
execute an appropriate power of attorney authorizing the Tax
Representative to represent Executive with respect to the
Excise Taxes. Executive further agrees to take any other
appropriate actions reasonably requested by the Tax
Representative in connection therewith; provided, however, that
the Corporation shall reimburse Executive for any expenses
incurred by Executive as a result of compliance with such
requests.
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(iii) If the Tax Representative files a claim
for refund of Excise Taxes with respect to which the
Corporation has made a Gross-Up Payment and such refund claim
is allowed by the IRS or by the final judgment of a court of
competent jurisdiction, Executive shall endorse the refund check
payable to the Corporation and shall send the refund check to the
Corporation not later than five (5) days after receipt from the
IRS.
(iv) If the Corporation designates a Tax
Representative, the Corporation shall pay all of his or her
professional fees and expenses and hold Executive harmless from
any claims in connection therewith. The Tax Representative
shall keep Executive timely informed of all significant
developments in the Excise Tax matter and shall send to
Executive copies of all correspondence relating thereto.
(v) Notwithstanding anything herein to the
contrary, if the Corporation is in material breach of any of
its obligations pursuant to this Agreement, the Corporation's
rights pursuant to this subsection 8(e) shall be extinguished
and Executive shall have the right to revoke any power of
attorney executed pursuant to this subsection 8(e).
9. NO OBLIGATION TO MITIGATE DAMAGES. The Executive
shall not be obligated to mitigate any damages by seeking other
employment or otherwise, and no amount payable hereunder and
no benefit or service credit for benefits shall be reduced in
the event that the Executive shall accept alternative
employment.
10. Benefits Payable Only From Corporate Assets.
(a) NO TRUST. Nothing contained in this Agreement,
and no action taken pursuant to its provisions by either party
hereto shall create, or be construed to create, a trust of any
kind, or a fiduciary relationship between the Corporation and
the Executive or his or her
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Beneficiary.
(b) EXECUTIVE'S STATUS AS UNSECURED GENERAL
CREDITOR. The payment of any benefits hereunder to the
Executive or his or her Beneficiary shall be made from assets
which shall continue, for all purposes, to be a part of the
general assets of the Corporation; no person shall have or
acquire any interest in such assets by virtue of the provisions
of this Agreement. To the extent that the Executive or his or
her Beneficiary acquires a right to receive payments from the
Corporation under the provisions hereof, such right shall be no
greater than the right of any unsecured general creditor of the
Corporation.
(c) RECOVERY OF COST OF PROVIDING BENEFITS. In the
event that, in its discretion, the Corporation purchases an
insurance policy insuring the life of the Executive to enable
the Corporation to recover, in whole or in part, the cost of
providing any benefits hereunder, neither the Executive nor his
or her Beneficiary under this Agreement shall have or acquire
any rights whatsoever therein. The Corporation shall be the sole
owner and beneficiary of any such policy and, as such, shall
possess and may exercise all incidents of ownership therein.
11. DETERMINATION OF BENEFITS AND CLAIMS PROCEDURE. The
Corporation shall make all determinations as to rights to
benefits under this Agreement. Subject to and in compliance
with the specific procedures contained in the applicable
regulations promulgated under the Employee Retirement Income
Security Act of 1974, as amended.
(a) Any decision by the Corporation denying a claim
for benefits under this Agreement by the Executive or his or
her Beneficiary shall be stated in writing by the Corporation
and delivered or mailed to the claimant.
(b) Each such notice shall set forth the specific
reasons for the denial, written
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to the best of the Corporation's ability in a manner that may
be understood without legal or actuarial counsel.
(c) The Corporation shall afford a reasonable
opportunity to the claimant whose claim for benefits has been
denied for a review of the decision denying such claim.
12. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plan or
program provided by the Corporation or any 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 other agreements with the Corporation or any
Affiliated Companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any
plan or program of the Corporation or any Affiliated Companies
shall be payable in accordance with the terms of such plan or
program.
13. FULL SETTLEMENT. Unless it is finally determined by
a court of competent jurisdiction after all available appeals
that the Corporation has validly terminated the Executive's
employment for Cause, the Corporation agrees to pay, to the
full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Corporation or
others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of
performance thereof, plus, in each case, interest compounded
quarterly, on the total unpaid amount determined be payable
hereunder, such interest to be calculated on the basis of the
prime commercial lending rate announced by FIRSTAR Bank, N.A.
in effect from time to time, for the period commencing
on the date of such contest and ending on the date on which
the Corporation shall pay such
21
amount. If it is finally determined by a court of competent
jurisdiction after all available appeals that the Executive's
employment was validly terminated for Cause, Executive shall
reimburse the Corporation for all legal fees and expenses paid
to him or her, if any, and all legal fees and expenses incurred
by the Corporation, provided that all such fees and expenses
related to the litigation in which Executive's termination was
finally determined to have been for Cause.
14. COVENANTS.
(a) NON-COMPETITION.
(i) Executive recognizes that during the
course of Executive's employment with the Corporation,
Executive has been and will be instructed about and become
acquainted with confidential information of the Corporation,
including, without limitation, customer lists, methods of
sales, the existence and contents and terms of this Agreement,
methods of sales procurement, sales procurement techniques,
sales procedures and equipment/supply information, equipment
and supply acquisition procedures and processes and sources,
customer evaluation procedures, customer maintenance and supply
maintenance procedures and corresponding information relating
to persons, firms and corporations which are or may become
customers of the Corporation and, further, companies from which
the Corporation obtains various products and supplies for sale,
resale and distribution to customers of the Corporation. This
confidential information further includes, but is not limited
to, customer identity, supplier identity and terms, purchase
terms, sales techniques, purchase conditions and rates,
customer needs, billing procedures and processes, contacts and
customer information. Further, Executive agrees and
acknowledges that the development and assemblage and maintenance
of the customer base of the Corporation has taken extraordinary
time, money,
22
resources, training, and effort by the Corporation and its
employees.
(ii) Executive agrees that he or she will not
during the Term of Employment and for a period of two (2) years
following cessation of his or her employment at the Corporation
("Restricted Period"), for any cause or reason, directly or
indirectly:
(A) Engage in any business in competition
with the Corporation and its Affiliates or supply and sell to
present customers, former customers and prospects of the
Corporation and its Affiliates; or
(B) Own, manage, operate, control, advise,
be employed by, consult, or materially participate in, or be
materially involved in any manner with the ownership,
management, operation or control of, individually or through any
other entity or device, any business that competes with the
business then conducted by the Corporation or any Affiliate;
provided, however, that mere ownership as an investor of not more
than five percent (5%) of the securities of a corporation or
other business enterprise shall not in and of itself be deemed to
violate this Section 14(a)(ii)(B).
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(i) Executive will not, except as authorized
by the Corporation in writing, during or at any time after the
termination of Executive's employment with the Corporation,
directly or indirectly, use for himself or herself or others,
or disclose, communicate, divulge, furnish to, or convey to any
other person, firm, or corporation, any secret or confidential
information, knowledge or data of the Corporation or that of
third parties obtained by Executive during the period of his or
her employment with the Corporation. Such information,
knowledge or data includes, without limitation, the following:
23
(A) Secret or confidential matters of a
technical nature such as, but not limited to, methods,
know-how, formulations, compositions, processes, discoveries,
machines, inventions, computer programs, and similar items or
research projects involving such items,
(B) Secret or confidential matters of a
business nature such as, but not limited to, marketing policies
or strategies, information about costs, price lists, purchasing
and purchasing policies, profits, market, sales or lists of
customers, customer history information, and
(C) Secret or confidential matters
pertaining to future developments such as, but not limited to,
research and development or future marketing or merchandising.
(ii) Executive, upon termination of his or her
employment with the Corporation, or at any other time upon the
Corporation's request, shall deliver promptly to the
Corporation all manuals, letters, notes, notebooks, reports,
formulations, computer programs and similar items, memoranda,
lists of customers, customer history information and all other
materials and copies thereof relating in any way to the
Corporation's business and in any way obtained by Executive
during the term of employment with the Corporation which are
in his or her possession or under his or her control; and
Executive will not make or retain any copies of any of the
foregoing and will so represent to the Corporation upon
termination of his or her employment.
(c) INDUCEMENT.
(i) Executive agrees that during the Term of
Employment and during
24
the Restricted Period, Executive shall not use any confidential
information for the purposes of inducing or attempting to induce
any present, former, or prospective customer of the Corporation
or its Affiliates to become a customer of Executive or any
person, firm, or corporation, or business association with which
Executive is affiliated in any capacity with respect to the
markets supplied by the Corporation or its Affiliates.
(ii) Executive agrees that during the Term of
Employment and during the Restricted Period, Executive shall
not directly or indirectly solicit for employment or employ any
of the Corporation's employees to work for Executive or any
business association with which/whom Executive is affiliated,
or to work for any other company in the markets supplied by the
Corporation or its Affiliates.
(d) INTEREST OF PARTIES. Executive agrees that the
duration of the limitations set forth in this Section 14 are
reasonable under the circumstances, considering Executive's
position with the Corporation and other relevant factors, and
that this will not constitute a serious handicap to Executive
in securing future employment.
(e) DISCLOSURE TO CORPORATION. Executive shall
promptly communicate and disclose to the Corporation all
information, observations and data obtained by Executive in the
course of Executive's employment. All written materials, records
and documents made by Executive or coming into Executive's
possession during the Term of Employment concerning any
inventions, products, processes or equipment, manufactured,
used, developed, investigated or considered by the Corporation
or any Affiliated Companies shall be the property of the
Corporation, and upon termination of the Term of Employment, or
upon request of the Corporation during the Term of Employment,
Executive shall promptly deliver the same to the
25
Corporation. Executive agrees to render to the Corporation
such reports of the activities of the business undertaken by
Executive or conducted under Executive's direction during the
Term of Employment as the Corporation may reasonably request.
(f) INVENTIONS.
(i) Executive shall promptly communicate and
disclose in writing to the Corporation all those inventions and
developments whether patentable or not, as well as patents and
patent applications (hereinafter collectively called
"Inventions"), made, conceived, developed or purchased by
Executive, or under which Executive acquires the right to grant
licenses or to become licensed, alone or jointly with others,
during the Term of Employment, which have arisen or may arise out
of Executive's employment, or relate to any matters pertaining
to, applicable to, or useful in connection with, the business or
affairs of the Corporation or any Affiliated Companies. All of
Executive's right, title and interest in, to and under all such
Inventions, licenses and rights to grant licenses shall be the
Sole property of the Corporation. Any such inventions disclosed
To anyone by Executive within one (1) year after the termination
of the Term of Employment for any cause whatsoever shall be
deemed to have been made or conceived by Executive during the
Term of Employment.
(ii) As to all such inventions, Executive
shall, upon request of the Corporation, during the Term of
Employment or thereafter:
(A) Execute all documents which the
Corporation shall deem necessary or proper to enable it to
establish title to such inventions, or other rights, and to
enable it to file and prosecute applications for letters patent
of the United States and any foreign country; and
26
(B) Do all things (including the giving of
evidence in suits and other proceedings) which the Corporation
shall deem necessary or proper to obtain, maintain or to assert
patents for any and all such inventions or to assert its rights
in any inventions not patented.
All expenses incident to any action required by the
Corporation or taken on its behalf pursuant to the provisions
of this paragraph shall be borne by the Corporation including
without limitation a reasonable payment for Executive's time
and expenses involved in case he or she is not then in its
employ.
(g) LITIGATION. Executive agrees that during the
Term of Employment or thereafter, Executive shall do all
things, including the giving of evidence in suits and other
proceedings, which the Corporation shall deem necessary or proper
to obtain, maintain or assert rights accruing to the Corporation
during the Term of Employment and in connection with which
Executive has knowledge, information or expertise. All
Reasonable expenses incurred by Executive during the Term of
Employment or thereafter in fulfilling the duties set forth
in this Section, shall be reimbursed by the Corporation to the
full extent legally appropriate including, without limitation, a
reasonable payment for Executive's time in the event this
Agreement has terminated prior to the time Executive renders such
assistance, advice and counsel.
15. EQUITY. The parties hereto agree that the services
to be rendered by Executive are special, unique and of an
extraordinary character. In the event of the breach by
Executive of any of the provisions of this Agreement, the
Corporation, in addition and as a supplement to such other rights
and remedies as may exist in its favor, may apply to any court of
law or equity having jurisdiction to enforce the specific
performance of this Agreement, and/or may apply for
27
injunctive relief against any act which would violate any of
the provisions of this Agreement.
16. EFFECT ON PRIOR AGREEMENTS. This Agreement shall
supersede and replace any and all prior employment agreements
entered into between Executive and the Corporation or any
Affiliated Company, including but not limited to that certain
Employment Agreement dated February 8, 1998. This Agreement
contains the entire understanding of the parties hereto with
respect to the subject matter hereof.
17. NO ASSIGNMENT.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Corporation shall not
be assignable by the Executive other than by will or the laws
of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives and Beneficiary.
(b) This Agreement shall inure to the benefit of and
be binding upon the Corporation and its successors. The
Corporation shall require any successor to all or substantially
all of the business and/or assets of the Corporation, whether
direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, by an agreement in form and
substance satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the
same extent as the Corporation would be required to perform if no
such succession had taken place.
18. SEVERABILITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement, and
this Agreement shall be construed in all respects as if such
invalid or unenforceable provision or clause were omitted.
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19. MISCELLANEOUS.
(a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri,
without reference to principles of conflict of laws. The
captions if this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be
amended or modified other 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. Xxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
IF TO THE CORPORATION:
Consumer Programs Incorporated
0000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Chairman and
Chief Executive Officer
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(c) This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter
hereof.
29
(d) The Corporation may withhold from any amounts
payable under this Agreement such federal, state or local taxes
as shall be required to be withheld pursuant to any applicable
law or regulation.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in duplicate, all as of the day and year first above
written.
CONSUMER PROGRAMS INCORPORATED
By: /s/ Xxxx X. Xxxxxx
____________________________________
(Xxxx X. Xxxxxx)
Chairman and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
____________________________________
(Xxxxxxx X. Xxxxxx )
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