1
EXHIBIT 10(p)
Executive Employment Agreement, effective as of
January 4, 1998, between X. X. Xxxxx Corporation
and Xxxxxxx X. Xxxxxxxxx
2
XXXXXXXXX
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT is made to be effective
as of the 4th day of January, 1998, between X. X. Xxxxx Corporation, an Ohio
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx (the "Executive") under
the following circumstances:
A. Executive is presently employed by the Company in an
executive capacity;
B. The Company desires by this Agreement to provide for the
continued employment of Executive by the Company; and
C. Executive desires to continue his employment with the
Company upon the terms and conditions stated herein.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE
MUTUAL COVENANTS CONTAINED HEREIN, THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:
Section 1. Employment. The Company hereby agrees to continue
to employ Executive, and Executive hereby agrees to continue in the employ of
the Company, on the terms and conditions set forth herein.
Section 2. Term of Employment. The term of employment of
Executive by the Company under this Agreement shall commence on the effective
date of this Agreement (the "Agreement Date") and end on the date which is the
fifth anniversary date of the Agreement Date (the "Term of Employment").
Section 3. Position and Duties.
(a) Position. During the Term of Employment, the Company
shall employ Executive as, and Executive shall serve as, a co-president of the
Company's "Xxxxx Division" and as a senior executive officer of the Company with
his duties, authority and responsibilities to be of the same character as those
assigned to him as of the date of this Agreement or in such other capacity or
capacities of at least equal standing and dignity connected with the business of
the Company as the Company shall from time to time determine, provided that any
change of capacity shall be subject to Executive's reasonable approval.
3
(b) Duties. Executive shall devote his full-time efforts to
the business and affairs of the Company and shall perform his duties faithfully,
diligently, and to the best of his ability and in conformity with the policies
of the Company and under and subject to such reasonable directions and
instructions as the Board of Directors and the Chief Executive Officer of the
Company may issue from time to time.
Section 4. Compensation and Related Matters.
(a) Salary. The Company shall pay Executive a base salary of
not less than $258,000 per year payable in approximately equal installments in
accordance with the Company's normal pay schedule. In the event the Company
shall at any time or times after the Agreement Date increase Executive's base
salary, then Executive's base salary under this Agreement for any period after
any such increase shall be not less than the last amount to which the Company
increased the base salary of Executive (such base salary including increases
granted after the Agreement Date is hereinafter referred to as "Basic Salary").
Compensation of Executive by Basic Salary payments shall not be deemed exclusive
and shall not prevent Executive from participating in any other compensation or
benefit plan of the Company. The Basic Salary payments hereunder shall not in
any way limit or reduce any other obligation of the Company hereunder, and no
other compensation, benefit or payment hereunder shall in any way limit or
reduce the obligation of the Company to pay Executive's Basic Salary hereunder.
(b) Expenses. During the Term of Employment, Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses incurred
by Executive in performing services hereunder, including all reasonable expenses
of travel and living expenses while away from home on business or at the request
of and in the service of the Company, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures established by
the Company.
(c) Other Benefits. During the term of Employment:
(1) The Company, at its expense, shall provide and maintain
a policy of insurance on Executive's life providing for a death benefit payable
to Executive's beneficiaries or estate in an amount that is not less than the
amount of coverage provided by the life insurance policy on Executive's life
maintained by the Company for Executive's benefit on the Agreement Date;
2
4
(2) Executive shall be entitled to receive such perquisites
and fringe benefits historically provided by the Company to its senior
executives, including, without limitation, the exclusive use of an automobile;
(3) Executive shall be entitled to participate in the
Company's Salaried Employees' Pension Plan (the "Pension Plan") and Supplemental
Retirement Plan (the "Supplemental Plan"), as any of the same may be amended
from time to time, or any substitute or successor plans;
(4) Executive shall be entitled to participate in the
Company's Short-Term Incentive Plan (STIPS), as the same may be amended from
time to time, or any substitute or successor plan, at a maximum annual level
equal to 60% of his Basic Salary; and
(5) Executive shall be entitled to receive all other
employee benefits, including, without limitation, medical, dental, group life
and accidental death insurance benefits as are or in the future may be provided
by the Company to its senior executives.
Section 5. Termination.
(a) Termination of Employment Other Than by Executive.
Executive's employment hereunder may be terminated without any breach of this
Agreement only under the following circumstances:
(1) Death. Executive's employment hereunder shall
terminate upon his death.
(2) Disability. If, as a result of Executive's
incapacity due to physical or mental illness, Executive
shall have been absent from his duties hereunder on a
full-time basis for the entire period of four consecutive
months, and within thirty days after written notice of
termination is given (which may occur before or after the
end of such four month period) shall not have returned to
the performance of his duties hereunder on a full-time
basis, the Company may terminate Executive's employment
hereunder for Disability.
(3) Cause. The Company may terminate Executive's
employment hereunder for Cause. For purposes of this
Agreement, the Company
3
5
shall have "Cause" to terminate Executive's employment
hereunder only upon:
(i) The willful and continued refusal by the Executive
to perform his duties with the Company (other than any such
refusal resulting from his incapacity due to physical or
mental illness), after a demand for substantial performance
is delivered to Executive by the Company which specifically
identifies the manner in which it is believed that Executive
has refused substantially to perform his duties;
(ii) Conviction of Executive of any felony; or
(iii) Willful and gross misconduct materially and
demonstrably injurious to the Company.
(b) Termination of Employment by Executive. Executive may
terminate his employment hereunder for Good Reason. As used herein, "Good
Reason" means any of the following:
(1) The assignment to Executive, without his consent,
of any duties materially inconsistent with his position,
duties, responsibilities and status with the Company on the
Agreement Date, or a change in Executive's responsibilities,
as in effect on the Agreement Date, which materially
diminishes Executive's responsibilities with the Company
when considered as a whole; provided, however, that the
foregoing shall not constitute Good Reason if done in
connection with the termination of Executive's employment
because of Disability or for Cause.
(2) A reduction by the Company in Executive's Basic
Salary.
(3) Failure by the Company to comply with the
provisions of Section 4(c).
(4) The Company's requiring Executive, without his
consent, to be based anywhere other than the location where
Executive is based on the Agreement Date, if the same
4
6
requires Executive to relocate his principal residence; or,
in the event Executive consents to being based anywhere
other than such location, the failure by the Company to pay
(or reimburse Executive for) all reasonable moving expenses
incurred by Executive relating to a change of Executive's
principal residence in connection with such relocation.
(5) The failure of the Company to obtain the assumption
of this agreement by any successor as provided in Section 9.
(c) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive other than termination pursuant to
Section 5(a)(1) shall be communicated by written Notice of Termination to the
other party. For purposes of this Agreement, a Notice of Termination shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(d) Date of Termination. "Date of Termination" shall mean
(i) if Executive's employment is terminated by his death, the date of his death,
(ii) if Executive's employment is terminated pursuant to Section 5(a)(2), thirty
days after Notice of Termination is given (provided that the Executive shall not
have returned to the performance of his duties on a full-time basis during such
thirty (30) day period), or (iii) if Executive's employment is terminated for
any other reason, the date on which the Notice of Termination is given.
Section 6. Compensation Upon Termination or During
Disability.
(a) Disability. During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Executive shall continue to receive his Basic
Salary at the rate then in effect for such period until his employment is
terminated pursuant to Section 5(a)(2), provided that payments of Basic Salary
so made to Executive shall be reduced by the sum of the amounts, if any, payable
to Executive at or prior to the time of any such salary payment under disability
benefit plans of the Company and which were not previously applied to reduce any
payment of Basic Salary.
5
7
(b) Death. If Executive's employment is terminated by his
death, the Company shall pay to Executive's estate his full Basic Salary through
the Date of Termination at the rate in effect on the date of death and shall
thereafter have no further obligations to Executive under this Agreement.
(c) Termination for Cause. If Executive's employment shall
be terminated for Cause, the Company shall pay Executive his full Basic Salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given and the Company shall have no further obligations to
Executive under this Agreement.
(d) Termination For Good Reason or Without Cause. In the
event Executive terminates his employment with the Company for Good Reason or
the Company terminates Executive's Employment for any reason other than for
Cause or Disability, in either case at any time prior to the expiration of the
Term of Employment, Executive shall be entitled to the following payments and
benefits:
(1) The Company shall pay to the Executive, not later than
30 days following the Date of Termination, the Executive's accrued but unpaid
Basic Salary through the Date of Termination plus compensation for current and
carried-over unused vacation and compensation days in accordance with the
applicable personnel policy.
(2) In lieu of any further payments of salary or bonus to
the Executive after the Date of Termination, the Company shall pay to the
Executive, not later than ten (10) days following the Date of Termination, a
lump sum cash severance payment (the "Severance Payment") equal to the total
compensation (including bonus) paid to or accrued for the benefit of the
Executive by the Company for services rendered during the twelve-month period
immediately preceding the Date of Termination.
(e) After payment of the sums described in subparagraphs
(d)(1) and (d)(2) above, the Company shall have no further obligations to
Executive under this Agreement; provided that the Executive's right to receive
payments under this Agreement shall not decrease the amount of, or otherwise
adversely affect, any other benefits payable to the Executive under any other
plan, agreement or arrangement relating to employee benefits provided by the
Company.
(f) Voluntary Termination by Executive Without Good Reason.
In the event Executive terminates his employment with
6
8
the Company without Good Reason, the Company shall pay to Executive his full
Basic Salary through the Date of Termination at the rate then in effect and the
Company shall have no further obligations to Executive under this Agreement.
(g) Executive shall not be required to mitigate the amount
of any payment provided for in this Section 6 by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for him in
this Section 6 be reduced by any compensation earned by Executive as the result
of employment by another employer or by reason of Executive's receipt of or
right to receive any retirement or other benefits after the date of termination
of employment or otherwise.
Section 7. Non-Competition; Confidentiality
(a) Period. During Executive's employment with the Company
and for a period of one (1) year following any termination of Executive's
employment with the Company (other than following a Hostile Change of Control
(as defined below)), Executive shall not, as a shareholder, employee, officer,
director, partner, consultant or otherwise, engage directly or indirectly in any
business or enterprise which is in Competition with the Company (as defined
below).
(b) Competition with the Company. For purposes of this
Agreement, (i) the words "Competition with the Company" shall be deemed to
include competition with the Company or any entity controlling, controlled by or
under common control with the Company (an "Affiliate"), or their respective
successors or assigns, or the business of any of them, and (ii) a business or
enterprise shall be deemed to be in Competition with the Company if it is
engaged in any business activity which is the same or comparable to any business
activity of the Company or any Affiliate from time to time during the Term of
Employment in any geographic area (whether within or outside the United States)
in which the Company or any Affiliate conducted such business. Notwithstanding
the foregoing, nothing herein contained shall prevent Executive from purchasing
and holding for investment less than 3% of the shares of any corporation the
shares of which are regularly traded either on a national securities exchange or
in the over-the-counter market.
(c) Interpretation of Covenant. The parties hereto agree
that the duration and area for which the covenant not to compete set forth in
this Section 7 is to be effective are reasonable. In the event that any court
determines that the time period or the area, or both of them, are unreasonable
and that such covenant is to that extent unenforceable, the parties
7
9
hereto agree that the covenant shall remain in full force and effect for the
greatest time period and in the greatest area that would not render it
unenforceable. The parties intend that this covenant shall be deemed to be a
series of separate covenants, one for each and ever county of each and every
state of the United States of America where the covenant not to compete is
intended to be effective. The provisions of this Section 7 shall survive any
termination of this Agreement.
(d) Prohibition on Disclosure or Use. Executive shall at all
times keep and maintain Confidential Information (as defined below)
confidential, and Executive shall not, at any time, either during or subsequent
to the Term of Employment, either directly or indirectly, use any Confidential
Information for Executive's own benefit or divulge, disclose, or communicate any
Confidential Information to any person or entity in any manner whatsoever other
than employees or agents of the Company having a need to know such Confidential
Information, and only to the extent necessary to perform their responsibilities
on behalf of the Company and other than in the performance of Executive's duties
hereunder.
(e) Definition of Confidential Information. "Confidential
Information" shall mean any and all information (excluding information in the
public domain) related to the business of the Company or any Affiliate,
including without limitation all processes; inventions; trade secrets; computer
programs; engineering or technical data, drawings, or designs; manufacturing
techniques; information concerning pricing and pricing policies; marketing
techniques; plans and forecasts; new product information; information concerning
suppliers; methods and manner of operations; and information relating to the
identity and location of all past, present, and prospective customers.
(f) Equitable Relief.Executive's obligations contained in
this Section 7 are of special and unique character which gives them a peculiar
value to the Company, and the Company cannot be reasonably or adequately
compensated in damages in an action at law in the event Executive breaches such
obligations. Executive therefore expressly agrees that, in addition to any other
rights or remedies which Company may possess, the Company shall be entitled to
injunctive and other equitable relief in the form of preliminary and permanent
injunctions without bond or other security in the event of any actual or
threatened breach of said obligations by Executive.
(g) Definition of Change of Control. A "Hostile Change of
Control" shall be deemed to have occurred if (i) any
8
10
"person" (as that term is used in Section 13(d) and Section 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on the
Agreement Date), including any "group" as such term is used in Section 13(d)(3)
of the Exchange Act on the Agreement Date (an "Acquiring Person"), shall
hereafter acquire (or disclose the previous acquisition of) beneficial ownership
(as that term is defined in Section 13(d) of the Exchange Act and the rules
thereunder on the Agreement Date) of shares of the outstanding stock of any
class or classes of the Company which results in such person or group possessing
more than 50.1% of the total voting power of the Company's outstanding voting
securities ordinarily having the right to vote for the election of directors of
the Company (a "Control Acquisition"); or (ii) as the result of, or in
connection with, any tender or exchange offer, merger or other business
combination, sale of assets or contested election, or any combination of the
foregoing transactions ("Transaction"), the persons who were directors of the
Company immediately before the completion of the Transaction shall cease to
constitute a majority of the Board of Directors of the Company or any successor
to the Company. Anything contained in this paragraph (g) to the contrary
notwithstanding, a "Hostile Change of Control" shall not be deemed to have
occurred if the Control Acquisition or the Transaction is approved by a majority
of the directors of the Company who were directors of the Company before the
completion of the Control Acquisition or the Transaction.
Section 8. Waiver. The failure of either party to this
Agreement to insist, in any one or more instances, upon the performance of any
of the terms, covenants or conditions of this Agreement by the other party
hereto, shall not be construed as a waiver or as a relinquishment of any right
granted hereunder to the party failing to insist on such performance, or as a
waiver of the future performance of any such term, covenant or condition, but
the obligations hereunder of both parties hereto shall remain unimpaired and
shall continue in full force and effect.
Section 9. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company and its
subsidiaries to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle Executive to compensation in the same amount
and on the same terms as he
9
11
would be entitled hereunder if he terminated his employment for Good Reason,
except that for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Date of Termination. As
used in this Agreement, "Company" shall mean the Company as defined above and
any successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 9 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts would still be payable to him hereunder
if he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to his devisee,
legatee or other designee or, if there by no such designee, to his estate.
Section 10. Arbitration. Any dispute or controversy arising
out of or relating to this Agreement, or any breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association. The award of the arbitrator shall be final, conclusive, and
nonappealable and judgment upon such award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator shall be an
arbitrator qualified to serve in accordance with the rules of the American
Arbitration Association and one who is approved by both the Company and
Executive. In the absence of such approval, each party shall designate a person
qualified to serve as an arbitrator in accordance with the rules of the American
Arbitration Association and the two persons so designated shall select the
arbitrator from among those persons qualified to serve in accordance with the
rules of the American Arbitration Association. The arbitration shall be held in
Columbus, Ohio or such other place as may be agreed upon at the time by the
parties to the arbitration.
Section 11. Notices. For the purpose of this Agreement,
notices and all other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed in the case of Executive, to
Xxxxxxx X. Xxxxxxxxx
000 Xxxxxxxx X., Xxx. 000
Xxxxxxxx, Xxxx 00000
10
12
and in the case of the Company, to the principal executive offices of the
Company, provided that all notices to the Company shall be directed to the
attention of the Company's Chief Executive Officer with copies to the Secretary
of the Corporation and to its Board of Directors, or to such other address as
either party may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
Section 12. Miscellaneous. No provisions of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Executive and a duly authorized
officer of the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws (but not the law of conflicts of laws) of the State of Ohio.
Section 13. Validity. The invalidity or unenforceability of
any provisions of this Agreement shall not affect the validity or enforceability
of any other provisions of this Agreement, which shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement to be effective as of the date and year above written.
X. X. XXXXX CORPORATION
By: /s/ XXXXXX XXXXX 12/10/97
-------------------------------
Title: CEO
----------------------------
/s/ XXXXXXX X. XXXXXXXXX 12/10/97
----------------------------------
Xxxxxxx X. Xxxxxxxxx
11
