Exhibit 10.8(e)
CONFIDENTIAL AND
LEGALLY PRIVILEGED
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of October ,
1998, by and between XXXXX CORPORATION, a Delaware corporation maintaining its
principal office at Two Pennsylvania Plaza, New York, New York (the "Company")
and Xxxxx X. Xxxxxx, now residing at 0 Xxxxx Xxxxx, Xxxxxxxxxxxxxx, Xxx Xxxxxx
00000 (the "Employee").
WITNESSETH:
WHEREAS, the Employee is currently serving as President and Chief
Operating Office of Xxxxx Energy Group, Inc., a wholly owned subsidiary of the
Company ("Xxxxx Energy"); and
WHEREAS, the Employee is currently employed under an employment
agreement with Xxxxx Energy dated January 1, 1994 and which was amended on
December 20, 1996 (the "Old Agreement"); and
WHEREAS, Xxxxx Energy, Company and Employee desire to terminate the Old
Agreement and enter into a new employment agreement with the Company on such
terms and conditions as set forth herein; and
WHEREAS, the Company desires to ensure that the Employee will continue
to be available to provide services in the capacity of President and Chief
Operating Officer of Xxxxx Energy in the future, which services are significant
to the Company's long-range prospects;
WHEREAS, to induce the Employee to continue to provide such services,
the Company is offering to provide the Employee with the compensation, benefits
and security provided for in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment/Capacity/Term.
The Company agrees to and does hereby continue to employ the
Employee, and the Employee agrees to and does hereby continue in the employ of
the Company upon the terms and conditions set forth in this Agreement. Such
employment shall be in an executive capacity as Executive Vice President of the
Company and as President and Chief Operating Officer of Xxxxx Energy. This
Agreement shall commence on October 1, 1998 and shall continue through September
30, 2003, and from year to year thereafter subject to the right of the Employee
or the Company to terminate the Agreement as of September 30, 1999, or any
subsequent September
30, by written notice given to the other party at least sixty (60) days prior to
such termination date stating an intention to so terminate. Termination by the
Company, in accordance with the provisions of the preceding sentence, shall
obligate the Company to make a severance payment as provided in Paragraph 9.
hereof. Termination by either party, in accordance with the provisions of the
above referenced sentence, shall not require a statement of the reason or cause
for such termination and shall not be deemed a breach or violation of this
Agreement by the party giving such notice so long as, in the case of the
Company, termination is effected with said severance payment. As used in this
Agreement, the phrase "term of this Agreement" shall be deemed to include the
period subsequent to the date hereof and prior to termination of this Agreement;
however, such phrase shall not be construed as limiting the enforceability by
either party of any rights which survive termination of this Agreement.
2. Time and Effort/Absences.
During the "term of this Agreement", the Employee shall devote
his entire time and attention during normal business hours to the business of
the Company and Xxxxx Energy and its subsidiaries (the "Xxxxx Energy Group"),
subject to the supervision of the Board of Directors of the Company, and he
shall not engage in any other business activity whether or not such business
activity is pursued for gain, profit, or other pecuniary advantage, but this
restriction shall not be construed to restrict the Employee (i) from performing
services as a member of the Board of Directors, Board of Trustee or the like of
any not-for-profit entity for which the Employee receives no compensation or as
a member of the Board of a for-profit corporation with the prior written
approval of the Chairman of the Board of the Company, provided that, in each
case such services do not unreasonably interfere with the ability of the
Employee to perform the services and discharge the responsibilities required of
him under this Agreement, and (ii) from investing his assets in such form or
manner as will not require any services on the part of the Employee in the
operation of the business of the entity in which such investments are made. The
Employee shall be excused from rendering his services during reasonable vacation
periods and during other reasonable temporary absences as authorized from time
to time by the Chairman of the Board of Directors of the Company. At the date
hereof, the principal office of the Company is located in the metropolitan New
York area and the principal office of Xxxxx Energy is located in Fairfield, New
Jersey, considered to be a New York suburb and part of the metropolitan New York
area. It is understood that the Employee will not be required to relocate from
the metropolitan New York area to discharge his responsibilities under this
Agreement.
3. Corporate Offices.
If elected, the Employee will serve, without additional
compensation, as an officer and director (or in either capacity) of the Company,
Xxxxx Energy and the Xxxxx Energy Group.
4. Salary/Bonus/Other Benefits.
In consideration of the services and duties to be rendered and
performed by the Employee during the term of this Agreement, the Company agrees
to pay and provide for the Employee the compensation and benefits described
below:
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(a) Consistent with the Company's policy concerning its
executives, the Employee's annual salary shall be reviewed
by the Board of Directors or an appropriate committee of
the Board of Directors of the Company on a calendar year
basis, with any increases therein being within the sole
discretion of the Board of Directors or an appropriate
committee of the Board of Directors and shall become
effective on March 1st of the following year. The minimum
annual salary payable to the Employee under this Agreement
shall be in the amount of Five Hundred Seventeen Thousand
Two Hundred Seventy Five and 00/100 Dollars ($517,275),
payable in equal monthly or bi-weekly installments.
(b) An annual incentive bonus in such amount as may from time
to time be fixed by the Board of Directors or an
appropriate committee of the Board of Directors of the
Company, provided that in determining the annual incentive
bonus the Board of Directors or appropriate Committee
shall utilize standards which are reasonably applied to
the Employee and other executives of the Company on a
non-discriminatory basis.
(c) Other Benefits. It is intended that the Company and Xxxxx
Energy shall continue to provide the Employee with
benefits at least as favorable as benefits provided on
behalf of other executives of the Company and the Xxxxx
Energy Group who furnish services of comparable
significance, as they may exist from time to time. Such
benefits presently include Group Life Insurance, Group
Health Insurance, Automobile Allowance, and Pension,
Profit Sharing and 401(k) Plans. Except as otherwise
provided herein, any such participation shall be in
accordance with the provisions of such plans and nothing
contained in this Agreement is intended to or shall be
deemed to affect adversely any of the Employee's rights as
a participant under any such plan. Nothing herein shall
prevent the Company from modifying or discontinuing any
benefit plan on a consistent and non-discriminatory basis
applicable to all such executives.
5. Expense.
The Employee shall be reimbursed for out-of-pocket expenses
incurred from time to time on behalf of the Company and the Xxxxx Energy Group
or in the performance of his duties under this Agreement, upon the presentation
of such supporting documents and forms as the Company shall reasonably request.
6. Medical Leave, Reasonable Accommodation, Termination for
Medical Incapacity and Disability Benefits.
The Company agrees to provide the Employee with a leave of
absence not to exceed six (6) months in duration in any twelve (12) month period
if the Employee has a medical condition that precludes the Employee from being
fully functional in his or her position.
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The term "fully functional" means able to travel to and from work, be at work,
perform satisfactorily all essential functions of the position and the
conditions of employment without significant risk of substantial harm to self or
others. Any leave entitlement granted by Federal, state or local law shall run
concurrently with the commencement of his or her six month period of leave,
whether such leave is taken all at once, intermittently or on a reduced time
basis. Nothing herein is intended to diminish any entitlement granted by law. If
appropriate, the Company will support the Employee's application for disability
benefits.
If the Employee is not able to return to the position in a
fully functional capacity at the conclusion of six months of medical leave in a
twelve month period, this Agreement may be terminated by the Board of Directors
of the Company at its sole discretion, without prior notice.
Unless otherwise prohibited by law, the Employee agrees that
the Employee will furnish for review by a medical professional designated by the
Company, copies of the Employee's medical records pertaining to any medical
condition for which the Employee requests a medical leave of more than twelve
(12) weeks in duration, return to work from any such leave, work restrictions,
modification or accommodation; or the Employee or the Company believes that the
Employee has a medical condition that may be causing or contributing to
performance or conduct deficiencies. The Employee also agrees to authorize any
health care professional from who the Employee is receiving diagnostic
evaluation, treatment or other medical care to discuss the Employee's medical
condition with the medical professional designated by the Company to receive and
review the Employee's medical records. The Employee further agrees that he or
she will undergo, at the sole expense of the Company, any medical specialty
evaluation if requested to do so by the Company.
The Company agrees to provide the Employee, if he or she is
otherwise qualified for the position, with medically necessary accommodation if
it likely will enable the employee to be fully functional in the position and is
reasonable, feasible and will not impose undue hardship on Company operations.
The term "medically necessary" means that the accommodation has risk-avoiding or
therapeutic value in accordance with scientifically valid medical principles and
practice and that the Employee requires similar accommodation when performing
comparable non-work functions.
The inability of the Employee to be fully functional in his or
her position for medical reasons shall not constitute a breach of this Agreement
by the Employee. If this Agreement is terminated by the Company because the
Employee is not fully functional in his or her position for medical reasons, as
provided for in this paragraph, the Company shall be obligated to continue the
salary of the Employee as provided in Paragraph 4. (a) for a period equal to the
greater of (a) twelve (12) months, or (b) such longer period as may be
determined by the Board of Directors of the Company, in each case, reduced by
any disability insurance benefits provided for the benefit of the Employee at
the expense of the Company.
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7. Death/Death Benefit.
In the event of the death of the Employee during the term of
this Agreement, this Agreement shall terminate and the Employee's salary shall
continue to be paid to his designated beneficiary, or if none, to his personal
representative, through the last day of the month in which such death occurs. In
addition, the Employee, his personal representative(s) and/or his beneficiaries
will be entitled to such death benefits as are provided to Employee under
Paragraph 4 hereof.
8. Company Stock Option Plan.
The Board of Directors of the Company has awarded and may from
time to time in the future award to the Employee non-qualified stock options to
purchase shares of the Company's Common Stock. If the employment of the Employee
terminates under circumstances entitling him to a Severance Payment (as defined
in Paragraph 9.), he shall thereupon be entitled to exercise any and all options
granted to him, to the extent permitted pursuant to the terms and conditions of
the Company's Stock Option Plan.
9. Severance Payment.
(A) If the Company gives notice to terminate in accordance with
Paragraph 1. of this Agreement or if the employment of the
Employee is terminated at any time (i) by the Employee for
Good Reason (as defined in Paragraph 10.), or (ii) by the
Company for any reason other than for Cause (as hereinafter
defined), the Company will be obligated to pay the following
amounts to the Employee (the "Severance Payment") within 30
days following Employee's date of termination:
(i) Earned But Unpaid Compensation. The Company shall pay
Employee any accrued but unpaid base salary for
services rendered to Employee's termination date, any
accrued but unpaid expenses required to be reimbursed
under this Agreement and any vacation accrued to
Employee's termination date.
(ii) Lump Sum Payment. The Company shall pay Employee an
amount equal to the product of five times the sum of
(a) and (b) below:
(a) Employee's annualized base salary at the
highest annual rate in effect at any time
prior to the Employee's termination date;
and
(b) The highest amount of annual bonus payable
to Employee at any time prior to the
Employee's termination date.
(iii) Gross-Up Payment. In the event that any portion of
the benefits payable under this Section 9.(A) and any
other payments and benefits under any other agreement
with or plan of the Company or Xxxxx Energy (in the
aggregate, "Total Payments") are deemed to constitute
an "excess parachute payment" within the meaning of
Section 280G of the Internal
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Revenue Code (the "Code"), then the Company shall pay
Employee as promptly as practicable following such
determination an additional amount (the "Gross-Up
Payment") calculated as described below to reimburse
Employee on an after tax basis for any excise tax
imposed on such payments under Section 4999 of the
Code. The Gross-up Payment shall equal the amount, if
any, needed to ensure that the net parachute payments
(including the Gross-up Payment) actually received by
Employee after the imposition of federal and state
income and excise taxes (including any interest or
penalties imposed by the Internal Revenue Service),
is equal to the amount that Employee would have
netted after the imposition of federal and state
income taxes had the Total Payments not been subject
to the taxes imposed by Section 4999. For purposes of
this calculation, it shall be assumed that Employee's
tax rate will be the maximum marginal federal and
state income tax rate on earned income, with such
maximum federal rate to be computed with regard to
Section 1(a) of the Code. In the event that Employee
and the Company are unable to agree as to the amount
of the Gross-up Payment, if any, Employee shall
select a law firm or accounting firm among those
regularly consulted (during the 12-month period
immediately prior to the Employee's termination date)
by the Company regarding federal income tax matters
and such law firm or accounting firm shall determine
the amount of Gross-up Payment and such determination
shall be final and binding upon Employee and the
Company.
(iv) Other Benefits. Any benefits to which Employee may be
entitled pursuant to the plans, policies and
arrangements referred to in Section 4(c) hereof shall
be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(v) No Mitigation Required. Employee shall not be
required to mitigate the amount of any compensation
provided for under this Section 9.(A) by seeking
other employment or otherwise, nor shall the amount
of any payment provided for under this Agreement be
reduced by any compensation earned by the Employee as
the result of employment with another employer after
the Employee's termination date or by any other
compensation.
(vi) Non-Competition Covenant Does Not Apply. The
restrictive covenant prohibiting competitive activity
set forth in Section 14. hereof shall not be
applicable to Employee and shall be null and void.
(vii) No Other Benefits or Compensation. Except as may be
provided under this Agreement, under the terms of any
incentive compensation, employee benefit, or fringe
benefit plan, applicable to Employee at the time of
Employee's termination or resignation of employment,
Employee shall have no right to receive any other
compensation, or to participate in any
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other plan, arrangement or benefit, with respect to
future periods after such termination or
resignation".
(B) Termination of the Employee's employment on account of his
disability, death or retirement (as defined in this Agreement) will not
be considered a termination of the Employee's employment by the company
and will not require the Company to pay and provide any Severance
Payment. No Severance Payment will be required if the employment of the
Employee is terminated by the Company for Cause (as hereinafter
defined) or by the Employee (other than for Good Reason as defined in
Paragraph 10) or if the Employee gives notice to terminate in
accordance with Paragraph 1. hereof. The Severance Payment provided
herein in is provided in order to reinforce and encourage the continued
loyalty, attention, and dedication of the Employee to the Company's
business and affairs without the concerns which normally arise from the
possibility of a loss of employment security. As used herein, the terms
"Retirement" and "Cause" shall have the following meanings,
respectively:
(a) Retirement. Termination of the Employee's employment
on account of "Retirement" shall mean termination on
or after the Employee's normal retirement date in
accordance with the terms of the Xxxxx Energy pension
plan (or any successor or substitute plan or plans of
Xxxxx Energy Group under which the Employee may be a
participant); and
(b) Cause. Termination by the Company of the Employee's
employment for "Cause" shall mean termination as a
result of (i) the willful and continued failure by
the Employee to devote the time, attention and effort
necessary to perform substantially the services
contemplated by this Agreement in a manner consistent
with the Employee's past performance (other than any
such failure resulting from the Employees incapacity
due to physical or mental illness) after a written
demand for substantial performance is delivered to
the Employee by a member or representative of the
Board of Directors of the Company which specifically
identifies the manner in which it is alleged that the
Employee has not devoted such time, attention and
effort necessary to substantially perform such
services, or (ii) the willful engaging by the
Employee in gross misconduct which is materially and
demonstrably injurious to the Company; provided that,
no act, or failure to act, on the Employee's part
shall be considered "willful" unless done, or
omitted to be done, in bad faith and without
reasonable belief that such action or omission was
in, or not opposed to, the best interests of the
Company. It is also expressly understood that the
Employee's attention to or engagement in matters not
directly related to the business of the Company shall
not provide a basis for termination for Cause if such
attention or engagement is authorized by the terms of
this Agreement or has otherwise been approved by the
Board of Directors of the Company. Anything in this
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Agreement to the contrary notwithstanding, the
Employee's employment may not be terminated for Cause
unless and until there shall have been delivered to
the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters
of the entire membership of the Board (after
reasonable notice to the Employee and an opportunity
for the Employee, together with his counsel, to be
heard before the Board), finding that in the good
faith opinion of the Board the Employee was guilty of
the conduct set forth in clause (i) or (ii) of this
subparagraph (b) and specifying the particulars
thereof in detail. Except as otherwise provided in
Paragraph 1 and Paragraph 6, no purported termination
by the Company of the Employee's employment which is
not justified as a termination of the Employee's
employment for Cause shall be effective.
10. Termination by the Employee for Good Reason.
The termination by the Employee of this Agreement and his
employment for "Good Reason" shall be deemed a justifiable termination of his
employment and shall excuse the Employee from the obligation to render services
as provided in Paragraph 2 hereof. Upon such termination, the Employee shall be
entitled to the Severance Payment in accordance with the provisions of Paragraph
9. (A) hereof. As used herein, the phrase "Good Reason" shall mean:
(a) a change in the Employee's status, title or
position(s) in an executive capacity as set forth in
Paragraph 1 hereof, which in his reasonable judgment,
does not represent a promotion from or enhancement of
his status, title and position, or the assignment by
the Board of Directors of the Company to the Employee
of any duties or responsibilities which, in his
reasonable judgment, are inconsistent with such
status, title or position, or any removal of the
Employee from or any failure to reappoint or reelect
him to such positions, except in connection with a
justifiable termination by ------ the Company of the
Employee's employment for Cause or on account of
disability, the Retirement or death of the Employee
or the termination by the employee of his employment
other than for Good Reason; or
(b) a reduction in the Employee's annual salary or a
failure by the Company to pay to the Employee any
installment of the annual salary required by
Paragraph 4 hereof, which failure continues for a
period of twenty (20) days after written notice
thereof is given by the Employee to the Company; or
(c) the Company's requiring the Employee to be based
anywhere other than the metropolitan New York area,
except for required travel on the business of the
Company or the Xxxxx Energy Group to an extent
substantially consistent with the business travel
obligations which the Employee has previously
undertaken on behalf of the Company or the Xxxxx
Energy Group; or
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(d) the failure by the Company to obtain the assumption
of this Agreement in form and substance to the
reasonable satisfaction of the Employee by any
permitted successor (other than by permitted merger
or consolidation for which no separate assumption is
necessary) as referred to in Paragraph 17; or
(e) any refusal by the Company to allow the Employee to
attend to matters or engage in activities not
directly related to the business of the Company which
is permitted by this Agreement or which, prior
thereto, was permitted by the Board of Directors of
the Company; or
(f) any "Change in Control" of the Company as defined in
Appendix A to this Agreement.
11. Notice of Termination.
Any purported notice of termination of this Agreement and the
Employee's employment shall be communicated in writing and delivered to the
other party as provided in Paragraph 18 (hereinafter a "Notice of Termination").
For purposes of this Agreement a "Notice of Termination" shall mean a notice
complying with the terms of this Agreement and which specifics the termination
provision relied upon by the party giving such notice and shall set forth in
detail such facts and circumstances claimed by said party to provide a justified
basis for termination of the Employee's employment under the provision(s) so
indicated.
12. Trade Secrets, Etc.
The Employee acknowledges that prior to his initial employment
by the Company and Xxxxx Energy he had no knowledge of the formulae, processes
or methods of manufacture or other trade secrets of the Company and Xxxxx
Energy. Upon the termination of his employment, the Employee agrees forthwith to
deliver up to the Company notebooks and other data relating to research or
experiments as conducted by him or relating to the products, formulae, processes
or methods of manufacture of the Company and Xxxxx Energy.
13. Customer List.
The Employee recognizes and acknowledges that the written list
of the customers of the Company, its subsidiaries, the Xxxxx Energy Group, and
affiliates, as they may exist from time to time, is a valuable, special and
unique asset. The Employee agrees that he will not during the term of his
employment or within five (5) years thereafter, use for his own personal benefit
or disclose the written list of the customers of the Company, its subsidiaries,
the Xxxxx Energy Group and affiliates or any part thereof, to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever.
14. Limited Covenant Not to Compete.
If the employment of the Employee hereof is terminated (i) by
the Employee pursuant to Paragraph 1 hereof or (ii) by the Company for Cause (as
defined in Paragraph 9.(B)(b) above), then in either case (y) the Employee will
not, for a period of five (5) years from
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such termination of employment, within the territorial confines of the United
States of America, directly or indirectly, own, manage, operate, control, be
employed by, participate in, or be connected in any manner with the ownership,
management, operation or control of any business in competition with the
business conducted by the Company and the Xxxxx Energy Group at the time of such
termination, and (z) the Employee will, for a period of five (5) years from such
termination refrain from carrying on a business similar to that presently
carried on by the Company and the Xxxxx Energy Group within the states in which
the business of the Company and the Xxxxx Energy Group has been carried on, so
long as the Company and the Xxxxx Energy Group carries on like business therein.
15. Injunctive Relief.
In the event of a breach by the Employee of the provisions of
Paragraph 12, 13 or 14 during or after the "term of this Agreement", the Company
shall be entitled to an injunction restraining the Employee from violation of
such paragraph. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedy it may have in the event of breach of this
Agreement by the Employee.
16. Certain Proprietary Rights.
Employee agrees to and hereby does assign to the Company all
his right, title and interest in and to all inventions, whether or not
patentable, which are made or conceived solely or jointly by him:
(a) At any time during the term of his employment by the
Company in an executive, managerial, planning,
technical research or engineering capacity (including
development, manufacturing, systems, applied science
and sales), or
(b) During the course of or in connection with his duties
during the "term of this Agreement", or
(c) With the use of time or materials of the Company.
The Employee agrees to communicate to the Company or
its representatives all facts known to him concerning
such inventions, to sign all rightful papers, make a
rightful oaths and generally to do every thing
possible to aid the Company in obtaining and
enforcing proper patent protection for all such
inventions in all countries and in vesting title to
such inventions and patents in the Company. For the
purpose of this Agreement, the subject matter of any
application for patent naming Employee as a sole or
joint inventor filed during the course of employment
or within one year subsequent to the termination
thereof shall be deemed to be an invention made or
conceived by him during the course of his employment
by the Company and assignable to the Company
hereunder, unless the Employee establishes by a
preponderance of the evidence that such invention was
made or conceived by him subsequent to termination of
his employment hereunder. At the Company's request
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(during or after the "term of this Agreement") and
expense, the Employee will promptly execute a
specific assignment of title to the Company, and
perform any other acts reasonably necessary to
implement the foregoing assignment.
17. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of:
(a) The Company and any successors or assigns of the
Company, whether by way of a merger or consolidation,
or liquidation of the Company, or by way of the
Company selling all or substantially all of the
assets of the Company, or a division thereof, to a
successor entity; however, in the event of the
assignment by the Company of this Agreement, the
Company shall nevertheless remain liable and
obligated to the Employee in accordance with the
terms hereof; and
(b) The Employee, his estate, his executors,
administrators, heirs and beneficiaries.
18. Notice.
Any notice or other communication required under this
Agreement shall be in writing, shall be deemed to have been given and received
when delivered in person, or, if mailed, shall be deemed to have been given when
deposited in the United States mail, first class, registered or certified,
return receipt requested, with proper postage prepaid, and shall be deemed to
have been received on the third business day thereafter, and shall be addressed
as follows:
If to the Company, addressed to:
Xxxxx Corporation
Xxx Xxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Board, President and Chief Executive Officer
With a copy to:
Senior Vice President and General Counsel
If to the Employee, addressed to:
Xxxxx X. Xxxxxx
0 Xxxxx Xxxxx
Xxxxxx Xxxxxxxx, Xxx Xxxxxx 00000
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or such address as to which any party hereto may have notified the other
in writing.
19. Governing Law.
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York.
20. Entire Agreement.
This Agreement contains or refers to the entire arrangement or
understanding between the Employee and the Company relating to the employment of
the Employee by the Company. No provision of the Agreement may be modified or
amended except by an instrument in writing by or for both parties hereto.
21. Waiver.
Failure of either party hereto to insist upon strict
compliance by the other party with any term, covenant or condition hereof shall
not be deemed a waiver of such term, covenant or condition, nor shall any waiver
or relinquishment or failure to insist upon strict compliance or any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
22. Prior Employment Agreement.
This Employment Agreement supercedes and replaces the Old
Agreement between the Employee and Xxxxx Energy dated as of January 1, 1994 as
amended December 20, 1996 which shall become null and void as of the date
hereof.
23. Assignment by Employee.
The rights and benefits of the Employee under this Agreement
are personal to him and no such right or benefit shall be subject to voluntary
or involuntary alienation, assignment or transfer; provided, however, that
nothing in this Paragraph 23 shall preclude the Employee from designating a
beneficiary or beneficiaries to receive any benefit payable on his death.
XXXXX CORPORATION
By: /s/ R. Xxxxxxx Xxxxx
-----------------------------------
Chairman of the Board, President
and Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
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APPENDIX A
DEFINITION OF CHANGE IN CONTROL
The following definition of Change in Control shall apply for purposes of
Paragraph 10.(e) of the Employment Agreement:
Change in Control. Change in Control of the Company shall be deemed to have
occurred as of the first day any one or more of the following conditions shall
have been satisfied:
(a) Any person, or more than one person acting as a group (within the
meaning of the Securities Exchange Act of 1934), other than a trustee
or other fiduciary holding securities under an employee benefit plan
sponsored by the Company, becomes the beneficial owner, directly or
indirectly, of securities of the Company, representing more than
twenty-five percent (25%) of the combined voting power of the Company's
then outstanding securities;
(b) Individuals who, as of May 20, 1998, constitute the Board of Directors
of the Company (the Incumbent Board) cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to May 20, 1998, whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
person other than the Board; or
(c) The stockholders of the Company approve: (i) a plan of complete
liquidation of the Company; or (ii) an agreement for the sale or
disposition of all or substantially all of the Company's assets; or
(iii) a merger, consolidation, or reorganization of the Company with or
involving any other corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least seventy-five percent (75%)
of the combined voting power of the voting securities of the Company
(or such surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.
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