EXHIBIT 10.4
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AMENDMENT TO
EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT dated as of September 27, 2005
between Xxxxx X. Xxxxx (the "Executive") and Xxxxxxxx, Inc., a Delaware
corporation (the "Company").
WHEREAS, the Executive and the Company are parties to an Employment
Agreement dated as of February 29, 1996 (the "Employment Agreement");
WHEREAS, the Executive currently serves as the President and Chief
Executive Officer of the Company and as a director of the Company;
WHEREAS, the Executive desires to retire prior to attaining age 65;
WHEREAS, the Company consents to the Executive's retirement prior to
attaining age 65; and
WHEREAS, the Company and the Executive desire to enter into this
Amendment to Employment Agreement to set forth the terms and conditions of
the Executive's retirement from the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. TERMINATION OF EMPLOYMENT. The Executive hereby resigns from
employment with the Company, effective as of the date of this Amendment to
Employment Agreement.
2. PAYMENTS AND BENEFITS UPON TERMINATION OF EMPLOYMENT.
(a) On April 1, 2006 (or any earlier date which is at least
six (6) months after the termination of the Executive's employment with the
Company), the Company shall pay to the Executive the sum of $1,207,278.84.
The Company has offered the Executive a choice as to the timing of the
payment of this compensation, and the Executive is, by executing this
Amendment to Employment Agreement, electing such lump sum payment.
(b) During the period from the date of this Amendment to
Employment Agreement until February 19, 2008 (the "Consulting Period"), the
Executive and his eligible dependents will be eligible for full coverage
under the Company's retiree healthcare plan, at the same cost to the
Executive as to the Company's active employees from time to time.
(c) Upon the execution of this Amendment to Employment
Agreement the Executive's stock options and other equity awards shall, to
the extent not otherwise exercisable or vested, shall become exercisable,
or become vested, in full. The Executive's stock options shall remain
exercisable following the Executive's termination of employment in
accordance with their terms; provided that, under the 1996 Equity Plan of
the Company, as amended, the Compensation Committee of the Company's Board
of Directors has consented to his retirement prior to reaching age 65.
(d) The Executive's benefit under the Supplemental Key
Executive Retirement Plan of Xxxxxxxx, Inc., commencing upon his attaining
age 65, will be calculated as if (i) the Executive had completed 25 years
of service, (ii) between the date of this Amendment to Employment Agreement
and February 19, 2008, the Executive's base salary had continued at the
rate in effect on January 1, 2005 and (iii) for each complete fiscal year
between the date of this Amendment to Employment Agreement and February 19,
2008, the Executive had received an annual bonus equal to the annual target
amount for the Executive for fiscal year 2005.
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(e) The Company will make available to the Executive
professional consulting services (at an aggregate cost of not more than
$35,000) to assist the Executive in identifying appropriate opportunities
for service on the boards of directors of other organizations not described
in Section 4(b) below.
(f) The Company will reimburse the Executive for the legal
fees he incurs (not to exceed $15,000) in connection with this Amendment to
Employment Agreement.
(g) The Executive shall not be eligible for benefits under
the Xxxxxxxx, Inc. Executive Special Severance Plan.
3. TERMINATION OF BOARD MEMBERSHIP; DIRECTOR EMERITUS POSITION.
The Executive hereby resigns as a director of the Company, effective as of
the date of this Amendment to Employment Agreement, and shall thereafter
have the position of Director Emeritus of the Company.
4. OBLIGATIONS OF THE EXECUTIVE.
(a) During the Consulting Period the Executive will not take
a position with any other organization, other than service on the boards of
directors of organizations not described in Section 4(b), and will make
himself available to provide such consulting services to the Company as the
Company may, from time to time, request.
(b) The Executive acknowledges that in the course of the
Executive's employment with the Company the Executive has become familiar
with trade secrets and other confidential information concerning the
Company and that the Executive's services were of special, unique and
extraordinary value to the Company. The Executive agrees that, during the
Consulting Period, and for a period of 18 months thereafter, the Executive
shall not directly or indirectly, except as a passive investor beneficially
owning not more than two percent of the voting securities of any publicly
held company, engage in, or own or control any interest in, or act as
director, officer, employee, agent, proprietor or otherwise of, or
consultant to, any firm or corporation directly or indirectly engaged, as
these terms may be reasonably construed, (i) in a business substantially
similar to that of the Company or (ii) in competition with the Company.
During the Consulting Period, and for a period of 18 months thereafter, the
Executive further agrees that the Executive shall not directly or
indirectly induce or attempt to induce any of the employees of the Company
to terminate such employment. If, at any time of enforcement of this
Section 4(b) a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the Executive agrees that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and
that the court shall be allowed to revise the restrictions contained herein
to cover the maximum period, scope and area permitted by law. This
Amendment to Employment Agreement shall not authorize a court to increase
or broaden any of the restrictions in this Section 4(b).
(c) The Executive agrees that all research and other
information, discoveries, inventions, improvements, formulas, designs,
trademarks, products, plans or writings originated, conceived, discovered,
made or first reduced to practice by the Executive, either solely or
jointly with others during and within the scope of the Executive's
employment by the Company, or on the premises, or using the facilities of
the Company, whether or not at the request or suggestion or in accordance
with the plans of the Company, shall be the sole property of the Company,
or its designees, successors or assigns. The Executive shall maintain
records thereof in the form and manner prescribed by the Company, and upon
request, the Executive will disclose the same to the Company in such form
and manner as the Company may provide, and the Executive will execute and
deliver to the Company, or its designees, successors or assigns, such
written applications, diagrams, plans, assignments, deeds or other
documents, and do such other acts as may be necessary or appropriate to
patent, register, copyright, obtain, perfect, or explain any such research
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and other information, discoveries, inventions, improvements, formulas,
designs, trademarks, products, plans or writings, and to perfect the title
of the Company, or its assignees, successors or assigns thereto, provided
that the Company or its assignees, successors or assigns shall compensate
the Executive in such a manner that the Executive will suffer no out-of-
pocket expense while so doing.
(d) The Executive agrees that the Executive shall not
divulge, communicate, or utilize for the benefit of the Executive or any
other party or person, any secret or confidential information which the
Executive has acquired or may acquire during the Executive's employment by
the Company, whether technical or nontechnical, pertaining to the business
or affairs of the Company, or of any of its clients, customers, consultants
or collaborators, except to such extent as may be necessary in the ordinary
course of performing the Executive's particular assigned duties as an
employee of the Company. In this connection the Executive has been
informed and recognizes that a part of the Company's business connection
may relate to research and development of products and processes, some of
which may be based on scientific or technological concepts which are
themselves recent developments, and to the development of such concepts,
any or all of which may include or constitute technical or nontechnical
information which the Company has the right to protect by holding it secret
or confidential, and that in the Executive's said employment the Executive
may be given access to or required to use or develop such proprietary
information and/or trade secrets. Upon termination of the Executive's said
employment the Executive will promptly deliver to the Company all drawings,
blueprints, manuals, letters, notes, notebooks, reports, records, writing
and all other materials, originated, conceived, discovered, made or
otherwise provided by the Executive or others, pertaining to the business
or affairs of the Company which are in the Executive's possession or under
the Executive's control, whether or not then on the premises of the
Company.
(e) The Executive acknowledges that the Company would be
damaged irreparably in the event that any provision of Section 4(b), 4(c)
or 4(d) of this Amendment to Employment Agreement were not performed in
accordance with its terms or were otherwise breached and that money damages
would be an inadequate remedy for any such nonperformance or breach.
Accordingly, the Executive agrees that the Company and its successors and
permitted assigns shall be entitled, in addition to other rights and
remedies existing in their favor, to an injunction or injunctions to
prevent any breach or threatened breach of any of such provisions and to
enforce such provisions specifically (without posting a bond or other
security). The Executive agrees that the Executive will submit to the
personal jurisdiction of the courts of the State of Illinois in any action
by the Company to obtain injunctive or other relief contemplated by this
Section 4(e).
5. GENERAL RELEASE.
(a) The Executive, on behalf of the Executive and anyone
claiming through the Executive, hereby agrees not to xxx the Company or any
division, subsidiary, affiliate or other related entity of the Company
(whether or not such entity is wholly owned) or any of the past, present or
future directors, officers, administrators, trustees, fiduciaries,
employees, agents, attorneys or shareholders of the Company or any of such
other entities, or the predecessors, successors or assigns of any of them
(hereinafter referred to as the "Released Parties"), and agrees to release
and discharge, fully, finally and forever, the Released Parties from any
and all claims, causes of action, lawsuits, liabilities, debts, accounts,
covenants, contracts, controversies, agreements, promises, sums of money,
damages, judgments and demands of any nature whatsoever, in law or in
equity, both known and unknown, asserted or not asserted, foreseen or
unforeseen, which the Executive ever had or may presently have against any
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of the Released Parties arising from the beginning of time up to and
including the effective date of this Amendment to Employment Agreement,
including, without limitation, all matters in any way related to the
Executive's employment by the Company or any of its affiliates, the terms
and conditions thereof, any failure to promote the Executive and the
termination or cessation of the Executive's employment with the Company or
any of its affiliates, and including, without limitation, any and all
claims arising under the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Civil Rights Act of 1866, the Age Discrimination in Employment
Act, the Older Workers' Benefit Protection Act, the Family and Medical
Leave Act, the Americans With Disabilities Act, the Employee Retirement
Income Security Act of 1974, the Illinois Human Rights Act, or the Chicago
or Xxxx County Human Rights Ordinance, each as may be amended from time to
time, or any other federal, state, local or foreign statute, regulation,
ordinance or order, or pursuant to any common law doctrine; PROVIDED,
HOWEVER, that nothing contained in this Amendment to Employment Agreement
shall apply to, or release the Company from, any obligation of the Company
contained in this Amendment to Employment Agreement. The consideration
offered in this Amendment to Employment Agreement is accepted by the
Executive as being in full accord, satisfaction, compromise and settlement
of any and all claims or potential claims, and the Executive expressly
agrees that the Executive is not entitled to, and shall not receive, any
further recovery of any kind from the Company or any of the other Released
Parties, and that in the event of any further proceedings whatsoever based
upon any matter released herein, neither the Company nor any of the other
Released Parties shall have any further monetary or other obligation of any
kind to the Executive, including any obligation for any costs, expenses or
attorneys' fees incurred by or on behalf of the Executive. The Executive
agrees that the Executive has no present or future right to employment with
the Company or any of the other Released Parties.
(b) The Executive expressly represents and warrants that the
Executive is the sole owner of the actual and alleged claims, demands,
rights, causes of action and other matters that are released herein; that
the same have not been transferred or assigned or caused to be transferred
or assigned to any other person, firm, corporation or other legal entity;
and that the Executive has the full right and power to grant, execute and
deliver the general release, undertakings and agreements contained herein.
6. ACKNOWLEDGMENT BY EXECUTIVE. BY EXECUTING THIS RELEASE AND
NONCOMPETITION AGREEMENT, THE EXECUTIVE EXPRESSLY ACKNOWLEDGES THAT THE
EXECUTIVE HAS READ THIS AMENDMENT TO EMPLOYMENT AGREEMENT CAREFULLY, THAT
THE EXECUTIVE FULLY UNDERSTANDS ITS TERMS AND CONDITIONS, THAT THE
EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING
THIS AMENDMENT TO EMPLOYMENT AGREEMENT, THAT THE EXECUTIVE HAS BEEN ADVISED
THAT THE EXECUTIVE HAS 21 DAYS WITHIN WHICH TO DECIDE WHETHER OR NOT TO
EXECUTE THIS AMENDMENT TO EMPLOYMENT AGREEMENT AND THAT THE EXECUTIVE
INTENDS TO BE LEGALLY BOUND BY IT. DURING A PERIOD OF SEVEN DAYS FOLLOWING
THE DATE OF THE EXECUTIVE'S EXECUTION OF THIS AMENDMENT TO EMPLOYMENT
AGREEMENT, THE EXECUTIVE SHALL HAVE THE RIGHT TO REVOKE THE RELEASE OF
CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT BY SERVING WITHIN
SUCH PERIOD WRITTEN NOTICE OF REVOCATION.
7. IMPACT ON OTHER AGREEMENTS. This Amendment to Employment
Agreement supersedes all of the provisions of Sections 1 through 4 of the
Employment Agreement; the remaining provisions of the Employment Agreement
shall continue in full force and effect. Nothing contained herein shall be
deemed to limit or otherwise affect the provisions of any noncompetition
agreement or code of conduct arrangement between the Executive and the
Company or the provisions of any other agreement or arrangement between the
Executive and the Company that is unrelated to the subject matter of this
Amendment to Employment Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
to Employment Agreement as of the day and year first above written.
XXXXXXXX, INC.
By
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EXECUTIVE:
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Xxxxx X. Xxxxx
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