AGREEMENT
This agreement (the "Agreement") is entered into as of the 16 day of April,
1999, by and between Xxxxxx Industries, Inc., a Texas corporation (the
"Company"), and Xxxx X. Xxxxxx, an individual ("Xxxxxx").
R E C I T A L S :
A. The Company and Xxxxxx are parties to an Employment Contract dated as
of the 14th day of September, 1994, as amended by Amendment No. 1 thereto, dated
as of December 18, 1997, and Amendment No. 2 thereto dated as of September 15,
1998 (collectively the "Employment Contract").
B. Pursuant to the terms of the Employment Contract, the Company agreed
to employ Xxxxxx and Xxxxxx agreed to be so employed by the Company for a term
ending on November 30, 1999 (the "Term").
C. Xxxxxx has now determined to retire from employment with the Company
effective April 16, 1999, and, in connection therewith, Xxxxxx and the Company
have mutually agreed to terminate the Employment Contract.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. Xxxxxx shall be paid, in a lump sum, the balance of the salary that
would have been paid under Section 2 of the Employment Contract through the end
of the Term. Such amount shall be payable in accordance with the Company's
standard payroll policies, practices and procedures.
2. The Company shall transfer ownership of the automobile, which was
previously furnished to Xxxxxx pursuant to Section 7 of the Employment Contract,
to Xxxxxx. Upon such transfer, Xxxxxx shall be responsible for all insurance,
maintenance and other expenses related to such automobile.
3. For so long as Xxxxxx desires, the Company shall xxxxxxx Xxxxxx with
use of the office space he currently occupies, equipped with a computer, and
secretarial assistance of his choosing. Xxxxxx shall be entitled to use of the
Company's airplanes for business and other purposes in accordance with the
Company's standard policies, practices and procedures in effect from time to
time.
4. Xxxxxx shall continue to be designated to use the Company's membership
at each of Shady Oaks Country Club and River Crest Country Club, and the Company
will reimburse Xxxxxx for any membership dues paid by him for such period as
Xxxxxx shall request. The Company shall arrange to transfer the Company's
membership to each of Ridglea Country Club, the Fort Worth Club and the City
Club to Xxxxxx. The Company shall pay all transfer fees associated with such
transfers, if any. Xxxxxx will be responsible for payment of dues and other
expenses associated with such memberships following such transfers.
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5. Xxxxxx shall be entitled to receive such further retirement benefits
and perquisites that the Company may have in effect and for which he qualifies
as a retiree as of the date of his retirement.
6. The Company shall take such action as may be necessary to cause all
stock options held by Xxxxxx to become fully vested as of the date hereof. In
addition, the Company shall take such further action as may be necessary to
cause all stock options held by Xxxxxx to remain exercisable until three years
after the date hereof; provided, however, that no such option shall be
exercisable after its expiration date.
7. Notwithstanding that Xxxxxx is retiring from employment with the
Company, it is contemplated that Xxxxxx xxx continue to be a member of the Board
of Directors of the Company and nothing herein shall be deemed to constitute
resignation by Xxxxxx as a member of the Board of Directors. For so long as
Xxxxxx serves on the Board of Directors, he shall hold the honorary title of
Chairman Emeritus.
8. It is recognized that certain paintings, sculptures, other artwork and
memorabilia located in the office space at the Company used by Xxxxxx (more
particularly described and listed on Exhibit A attached hereto) are the personal
property of Xxxxxx and may be removed by him at any time.
9. At such time that Xxxxxx ceases to be a member of the Board of
Directors of the Company, the Company shall reasonably endeavor to obtain, and
maintain in effect for Justin's benefit for a period of two years, continuation
of director and officer liability insurance coverage reasonably equivalent to
that, if any, provided for the members of the Board of Directors.
10. Any waiver by either party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. No waiver shall be binding unless in writing and signed by the party
waiving the breach.
11. This Agreement shall be deemed to have been executed and delivered
within the State of Texas, and the rights and obligations of the parties
hereunder shall be construed and enforced in accordance with, and governed by,
the laws of the State of Texas without regard to principles of conflict of laws.
12. This Agreement is personal to Xxxxxx and Xxxxxx shall not assign,
transfer, or otherwise convey this Agreement or any right or interest herein.
This Agreement and all rights and obligations of the Company or any of its
successors may be assigned or otherwise transferred to any of its successors and
shall be binding upon and inure to the benefit of such persons or entities. As
used herein, the term "successor" shall mean any person, corporation or other
entity acquires all or substantially all of the Company's stock or with which
the Company merges or consolidates.
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13. If any provision of this Agreement or the application thereof is held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or application thereof
which can be given effect without the invalid provision or application and to
this end the provisions of this Agreement are declared to be severable.
14. This Agreement is being executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
15. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given and delivered if
delivered personally or sent by certified or registered mail, postage prepaid,
return receipt requested, or by express or other delivery service, if to Xxxxxx,
to his attention at the address recorded in Justin's personnel file and, if to
the Company, to the attention of the Secretary of the Company at 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000 (or such other address as specified from
time to time by a party in a written notice to the other party given as provided
herein).
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first written above.
XXXXXX INDUSTRIES, INC.
By: /S/X. X. XXXXXXXXX
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Name: X. X. Xxxxxxxxx
Title: President/CEO
/S/XXXX X. XXXXXX
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Xxxx X. Xxxxxx
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