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EXHIBIT 10.21
EMPLOYMENT AND NONCOMPETITION AGREEMENT
This AGREEMENT (the "Agreement") is entered into as of April 27, 1999, by
and between Xxxxxxx American Corporation, a Delaware corporation (the
"Employer"), and Xxxxxx X. Xxxxxxx (the "Executive"). This Agreement will become
effective on the Effective Date (as defined in Section 3 hereof) and until the
Effective Date, neither the Employer nor Executive shall have any rights or
obligations hereunder. Upon the Effective Date, this Agreement will supersede
and replace in its entirety the Employment and Noncompetition Agreement dated as
of December 18, 1998 by and between the Employer and the Executive and neither
party will have any further rights or obligations thereunder. This Agreement
will terminate upon, and will not become effective in the event of, any
termination of the Agreement and Plan of Merger dated as of April 27, 1999 by
and among the Employer, Richmont Marketing Specialists, Inc. and the other
parties thereto (as amended from time to time, the "Merger Agreement"). In
consideration of the mutual covenants contained in this Agreement, the Employer
and the Executive agree as follows:
1. Employment. The Employer agrees to employ the Executive and the
Executive agrees to be employed by the Employer on the terms and conditions set
forth in this Agreement.
2. Capacity. The Executive shall serve the Employer as Chief Executive
Officer. In such capacity, the Executive shall perform such services and duties
in connection with the business, affairs and operations of the Employer
consistent with such position as may be assigned or delegated to the Executive
from time to time by or under the authority of the Board of Directors of the
Employer (the "Board of Directors").
3. Term. Subject to the provisions of Section 6, the term of employment
pursuant to this Agreement shall be five (5) years from the Effective Date (the
"Initial Term") and shall continue from month to month thereafter (the "Extended
Term"), subject to either party's thirty (30) day advance notice of non-renewal
(a "Non-renewal Notice"). The Effective Date of this Agreement shall be the date
on which the transactions contemplated by the Merger Agreement, including the
Merger (as defined therein), are consummated.
4. Compensation and Benefits. The regular compensation and benefits
payable to the Executive under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Executive under this
Agreement, the Employer shall pay the Executive a salary (the "Salary") at
the annual rate of FOUR HUNDRED FIFTY THOUSAND DOLLARS ($450,000), subject
to increase from time to time in the discretion of the Board of Directors
or the Compensation Committee of the Board of Directors (the "Compensation
Committee"). The Salary shall be payable in periodic installments in
accordance with the Employer's usual practice for its senior executives.
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(b) Bonus. The Executive shall be entitled to participate in annual
incentive program established by the Board of Directors or the Compensation
Committee with such terms as may be established in the sole discretion of
the Board of Directors or Compensation Committee; provided that such annual
incentive plan shall be adopted on or before the closing of the Merger and
shall provide for annual cash bonus incentives commensurate with the
Executive's position.
(c) Stock Options. On the Effective Date, the Employer will grant to
the Executive options to purchase sixty thousand (60,000) shares of common
stock of the Employer. Such stock options shall have a per share exercise
price equal to the greater of (i) Fair Market Value (as defined in the
Employer's 1998 Stock Option and Incentive Plan (the "Plan")) at the date
of grant and (ii) $13.50, shall vest ratably over a five (5) year period,
and shall be subject to the terms and conditions of the Plan.
(d) Regular Benefits. From and after the commencement of the Initial
Term, the Executive shall continue to participate in such employee benefit
plans of the Employer in which the Executive participated prior to the
Merger (the "Predecessor Plans"). The Executive may continue to participate
in each such Predecessor Plan, in accordance with and subject to each such
Predecessor Plan's terms and conditions, as may be modified or amended from
time to time by the Employer, until such time as the Employer terminates
any such Predecessor Plan. Thereafter, the Executive shall be entitled to
participate in any employee benefit plans, including, without limitation,
medical insurance plans, life insurance plans, disability income plans,
retirement plans, and other benefit plans, which the Employer may from time
to time have in effect for all or most of its senior executives.
Notwithstanding the foregoing, the Employer will keep in place the current
disability policy in effect for the Executive for the duration of his
employment. During the Initial Term, the Employer shall provide the
Executive with medical insurance coverage that is substantially equivalent
to the medical insurance coverage applicable to the Executive immediately
prior to the Merger. The Executive's participation in any employee benefit
plan shall at all times be subject to the terms of the applicable plan
documents, generally applicable policies of the Employer, applicable law
and the discretion of the Board of Directors, the Compensation Committee or
any administrative or other committee provided for in or contemplated by
any such plan. Nothing contained in this Agreement shall be construed to
create any obligation on the part of the Employer to establish any such
plan or to maintain the effectiveness of any such plan which may be in
effect from time to time.
(e) Other Benefits and Perquisites.
(i) Expenses. The Employer shall reimburse the Executive for
expenses reasonably incurred by the Executive in furtherance of
his duties for the Employer hereunder. The Employer's obligation
to reimburse the Executive for such expenses shall be subject to
the
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Employer's expense reimbursement policies, as established,
modified or amended by the Employer from time to time, and the
submission by the Executive of documentation in a form acceptable
to the Employer.
(ii) Automobile. During the Initial Term, the Executive shall be
entitled to use an automobile supplied by the Employer and to
receive reimbursement from the Employer for business-related
automobile expenses to the extent that and subject to
substantially equivalent terms and conditions on which the
Employer provided such benefits to the Executive immediately
prior to the Merger.
(iii) Vacation. The Executive shall be entitled to four (4) weeks
of paid vacation per year which shall accrue on a pro rata basis.
The Executive's entitlement to carry-over unused vacation from
year to year shall be subject to vacation policies established,
and as modified or amended, from time to time by the Employer;
provided, that nothing contained herein shall be construed to
require the Employer to permit the carry-over of unused vacation.
The number of days of paid vacation accrued for the Executive as
of the Effective Date will carry forward until used and will be
deemed to be used after all accrued vacation under this Agreement
has been used.
(f) Taxation of Payments and Benefits. The Employer shall undertake
to make deductions, withholdings and tax reports with respect to payments
and benefits under this Agreement to the extent that it reasonably and in
good faith believes that it is required to make such deductions,
withholdings and tax reports. Payments under this Agreement shall be
reduced by any such deductions or withholdings. Nothing in this Agreement
shall be construed to require the Employer to make any payments to
compensate the Executive for any adverse tax effect associated with any
payments or benefits or for any deduction or withholding from any payment
or benefit.
(g) Exclusivity of Salary and Benefits. The Executive shall not be
entitled to any payments or benefits other than those provided under this
Agreement.
5. Extent of Service. During the Executive's employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
Board of Directors, devote the Executive's full business time, best efforts and
business judgment, skill and knowledge to the advancement of the Employer's
interests and to the discharge of the Executive's duties and responsibilities
under this Agreement. The Executive shall not engage in any other business
activity, except as may be approved by the Board of Directors; provided that
nothing in this Agreement shall be construed as preventing the Executive from:
(a) investing the Executive's assets in any company or other entity
in a manner not prohibited by Section 7(d) and in such form or manner as
shall not require
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any material activities on the Executive's part in connection with the
operations or affairs of the companies or other entities in which such
investments are made; or
(b) engaging in religious, charitable or other community or
non-profit activities that do not impair the Executive's ability to fulfill
the Executive's duties and responsibilities under this Agreement.
6. Termination and Termination Benefits. Notwithstanding the provisions
of Section 3, the Executive's employment under this Agreement shall terminate
under the following circumstances set forth in this Section 6.
(a) Termination by the Employer for Cause. The Executive's employment
under this Agreement may be terminated for cause without further liability
on the part of the Employer effective immediately upon a vote of the Board
of Directors and written notice to the Executive. Only the following shall
constitute "cause" for such termination:
(i) intentional dishonest statements or acts of the Executive
with respect to the Employer or any affiliate of the Employer which
constitute material disloyalty or dishonesty toward the Employer or
any affiliate of the Employer or cause significant damage to the
Employer or any affiliate of the Employer, including damage to the
business reputation of the Employer or any affiliate of the Employer;
(ii) the conviction of the Executive for (A) a felony or (B) any
crime involving moral turpitude, deceit, dishonesty or fraud;
(iii) subject to the provisions of subsection (e) below, failure
or refusal to perform to the reasonable satisfaction of the Board of
Directors a substantial portion of the Executive's duties and
responsibilities reasonably assigned or delegated under this
Agreement, which failure continues, in the reasonable judgement of the
Board of Directors, after the Board of Directors has given written
notice to the Executive detailing the substance of the alleged failure
or refusal and the Executive has been given a reasonable opportunity
to cure such alleged failure or refusal;
(iv) gross negligence or willful misconduct of the Executive with
respect to the Employer or any affiliate of the Employer which is
repeated or continued by the Executive, in the reasonable judgment of
the Board of Directors, after the Board of Directors has given written
notice to the Executive detailing the substance of the alleged
negligence or misconduct and the Executive has been given a reasonable
opportunity to cure such alleged negligence or misconduct; or
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(v) material breach by the Executive of any of the Executive's
other material obligations under this Agreement, which breach is
repeated or continued by the Executive, in the reasonable judgment of
the Board of Directors, after the Board of Directors has given written
notice to the Executive detailing the substance of the alleged breach
and the Executive has been given a reasonable opportunity to cure such
alleged breach.
(b) Termination by the Executive. The Executive's employment under
this Agreement may be terminated by the Executive by written notice to the
Board of Directors at least thirty (30) days prior to such termination.
(c) Termination by the Employer Without Cause. Subject to the payment
of Termination Benefits pursuant to Section 6(d), the Executive's
employment under this Agreement may be terminated by the Employer without
cause upon written notice to the Executive of a vote by the Board of
Directors to terminate delivered to the Executive at least thirty (30) days
prior to such termination, provided that, the Employer, in its sole
discretion, may elect to earlier terminate the Executive without such
notice upon payment to the Executive of additional compensation for the
number days by which thirty (30) exceeds the number of days by which such
notice preceded the date of such termination. Notwithstanding anything
herein to the contrary, the Employer shall be deemed to have terminated the
Executive under this Section 6(c), thereby entitling him to all of the
rights and benefits set forth herein for termination under this Section
6(c), if the Employer, without the Executive's prior written consent, (i)
changes the Executive's position or title set forth in Section 2 hereof or
the level of responsibilities generally accorded to the Chief Executive
Officer, (ii) breaches its obligations to the Executive under this
Agreement, or (iii) moves the primary location of his employment or directs
the Executive to work more than two weeks in any calender month at, a
location which is outside of a 50-mile radius of the city limits of Canton,
Massachusetts.
(d) Certain Termination Benefits. Unless otherwise specifically
provided in this Agreement or otherwise required by law, all compensation
and benefits payable to the Executive under this Agreement shall terminate
on the date of termination of the Executive's employment under this
Agreement pursuant to this Section 6 or due to delivery of a Non-renewal
Notice from either party to the other. Notwithstanding the foregoing, in
the event of termination of the Executive's employment with the Employer
pursuant to Section 6(c) above, the Employer shall provide to the Executive
the following termination benefits ("Termination Benefits"):
(i) continuation of the Salary at the rate then in effect
pursuant to Section 4(a);
(ii) continuation of group health plan benefits, (A) if permitted
by Employer's health plan or if Employer self-insures (provided
that
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Employer shall have no obligation to self-insure), until the
expiration of the Initial Term, or (B) if not permitted by
Employer's health plan, to the extent authorized by and
consistent with 29 U.S.C Section 1161 et seq. (commonly known as
"COBRA"), in either case with the cost of the regular premium for
such benefits shared in the same relative proportion by the
Employer and the Executive as in effect on the date of
termination; and
(iii) continuation of automobile benefits as in effect on the
date of termination pursuant to Section 4(d)(ii).
The Termination Benefits set forth in (i) above shall continue effective
until the later of (A) the expiration of the Initial Term or (B) for twelve
months from the date of termination of employment, provided that the Executive
shall not have materially breached, (1) as of the date of termination, any of
his or her covenants or agreements contained in Sections 7 and 8 of this
Agreement or (2) thereafter, any of his or her covenants or agreements contained
in this Agreement. The Termination Benefits set forth in (ii) and (iii) above
shall continue effective until the expiration of the Initial Term, provided that
the Executive shall not have materially breached, (x) as of the date of
termination, any of his or her covenants or agreements contained in Section 7
and 8 of this Agreement or (y) thereafter, any of his or her covenants or
agreements contained in this Agreement. Notwithstanding the foregoing, nothing
in this Section 6(d) shall be construed to affect the Executive's right to
receive COBRA continuation entirely at the Executive's own cost to the extent
that the Executive may continue to be entitled to COBRA continuation after the
Executive's right to cost sharing under Section 6(d)(ii) ceases.
(e) Disability. Notwithstanding the provisions of subsection (a)(iii)
above, if the Executive shall be disabled so as to be unable to perform the
essential functions of the Executive's then existing position or positions
under this Agreement with or without reasonable accommodation, the Board of
Directors may remove the Executive from any responsibilities and/or
reassign the Executive to another position with the Employer for the
remainder of the Initial Term or, if the Initial Term has expired, any
Extended Term, or during the period of such disability. Notwithstanding any
such removal or reassignment, the Executive shall continue to receive the
Executive's full Salary (less any disability pay or sick pay benefits to
which the Executive may be entitled under the Employer's policies) and
benefits under Section 4 of this Agreement (except to the extent that the
Executive may be ineligible for one or more such benefits under applicable
plan terms) for a period of time equal to the remainder of the Initial Term
or, if the Initial Term has expired, any Extended Term, provided that the
Executive remains employed by the Employer during such period. In the event
that the Employer terminates the Executive's employment without cause
pursuant to Section 6(c) or the Employer delivers a Non-renewal Notice to
the Executive, in either case due to the Executive's continuing inability
to perform the essential functions of the Executive's then existing
position or positions, the Executive shall be eligible to receive
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Termination Benefits subject to and in accordance with the terms and
conditions of Section 6(d), provided that the Executive's Termination
Benefit additionally shall be subject to reduction by the amount of any
payments the Executive receives under any disability benefit plan or plans
or insurance policies the Employer maintains for the Executive, or under
worker's compensation, or state or federal disability benefit programs. If
any question shall arise as to whether during any period the Executive is
disabled so as to be unable to perform the essential functions of the
Executive's then existing position or positions with or without reasonable
accommodation, the Executive may, and at the request of the Employer shall,
submit to the Employer a certification in reasonable detail by a physician
selected by the Employer to whom the Executive or the Executive's guardian
has no reasonable objection as to whether the Executive is so disabled or
how long such disability is expected to continue, and such certification
shall for the purposes of this Agreement be conclusive of the issue. The
Executive shall cooperate with any reasonable request of the physician in
connection with such certification. If such question shall arise and the
Executive shall fail to submit such certification, the Employer's
determination of such issue shall be binding on the Executive. Nothing in
this Section 6(e) shall be construed to waive the Executive's rights, if
any, under existing law including, without limitation, the Family and
Medical Leave Act of 1993, 29 U.S.C. Section 2601 et seq. and the Americans
with Disabilities Act, 42 U.S.C. Section 12101 et seq.
7. Confidential Information, Noncompetition and Cooperation.
(a) Confidential Information. As used in this Agreement,
"Confidential Information" means information belonging to the Employer
which is of value to the Employer in the course of conducting its business
and the disclosure of which could result in a competitive or other
disadvantage to the Employer. Confidential Information includes, without
limitation, financial information, reports, and forecasts; market or sales
information, plans, methods and techniques; pricing policies; customer
lists; price lists; inventions, improvements and other intellectual
property; trade secrets; know-how; designs, processes or formulae;
software; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities) which have been
discussed or considered by the management of the Employer. Confidential
Information includes information developed by the Executive in the course
of the Executive's employment by the Employer, as well as other information
to which the Executive may have access in connection with the Executive's
employment. Confidential Information also includes the confidential
information of others with which the Employer has a business relationship,
including without limitation its principals, packers and suppliers.
Notwithstanding the foregoing, Confidential Information does not include
information in the public domain, unless due to breach of the Executive's
duties under Section 7(b).
(b) Confidentiality. The Executive understands and agrees that the
Executive's employment creates a relationship of confidence and trust
between the
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Executive and the Employer with respect to all Confidential Information. At
all times, both during the Executive's employment with the Employer and
after its termination, the Executive will keep in confidence and trust all
such Confidential Information, and will not use or disclose any such
Confidential Information without the written consent of the Employer,
except as may be necessary in the ordinary course of performing the
Executive's duties to the Employer.
(c) Documents, Records, etc. All documents, records, data, apparatus,
equipment and other physical property, whether or not pertaining to
Confidential Information, which are furnished to the Executive by the
Employer or are produced by the Executive in connection with the
Executive's employment will be and remain the sole property of the
Employer. The Executive will return to the Employer all such materials and
property as and when requested by the Employer. In any event, the Executive
will return all such materials and property immediately upon termination of
the Executive's employment for any reason. The Executive will not retain
with the Executive any such material or property or any copies thereof
after such termination.
(d) Noncompetition and Nonsolicitation. During the Initial Term and
any Extended Term(s) and for one (1) year thereafter (or during the period
during which the Executive is entitled to receive Termination Benefits, if
longer) (the "Restricted Period"), the Executive (i) will not, directly or
indirectly, whether as owner, partner, shareholder, advisor, consultant,
agent, employee, co-venturer, creditor, officer, director, trustee or
otherwise, engage, participate, assist or invest in any Restricted Business
within the Territory (as those terms are hereinafter defined); (ii) will
refrain from directly or indirectly employing, attempting to employ,
recruiting or otherwise soliciting, inducing or influencing any person to
leave employment with the Employer (other than terminations of employment
of subordinate employees undertaken in the course of the Executive's
employment with the Employer); and (iii) (other than on behalf of the
Employer) will refrain from directly or indirectly, in any manner,
providing Services to any principal, customer or supplier of the Employer,
soliciting such principal, customer or supplier of the Employer where a
purpose or effect of such solicitation is to provide Services directly or
indirectly, from soliciting or encouraging any principal, customer or
supplier to terminate or otherwise modify adversely its business
relationship with the Employer. The Executive understands that the
restrictions set forth in this Section 7(d) are intended to protect the
Employer's interest in its Confidential Information and established
employee, customer and supplier relationships and goodwill, and agrees that
such restrictions are reasonable and appropriate for this purpose.
For purposes of this Agreement, the term "Restricted Business" shall mean
any person, business or entity that provides Services.
For purposes of this Agreement, the term "Services" shall mean:
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(A) any business actively conducted by the Employer on the date of
the termination of Executive's employment with the Employer, and
(B) any business conducted by the Employer within the twelve (12)
month period immediately preceding the termination of Executive's
employment with the Employer, and
(C) any business the Employer actively considered entering within
twelve (12) months preceding the date of the termination of
Executive's employment with the Employer if the Executive had
knowledge of such consideration and the Employer in fact commences
conducting such business during the Initial Term, any Extended Term(s)
or during the six-month period thereafter, provided that any business
included under this clause (C) will cease to be included if the
Employer ceases to engage in such business.
Notwithstanding the foregoing, (i) the term "Services" shall exclude
any business which derives all of its revenues from the sale of products
which are manufactured by such business and (ii) the Executive may own up
to one percent (1%) of the outstanding stock of a publicly held corporation
which constitutes or is affiliated with a Restricted Business.
For purposes of this Agreement, the term "Territory" shall mean:
(A) any geographic area in which the Employer engaged in business and
for which the Executive had any responsibility at the time of the
termination of the Executive's employment or within the twelve (12)
month period preceding termination, and
(B) any geographic area in which the Employer engaged in business at
the time of the termination of the Executive's employment or within
the twelve (12) month period preceding termination, and
(C) any geographic area in which the Employer actively considered
conducting business within twelve (12) months preceding the date of
the termination of Executive's employment with the Employer if the
Executive had knowledge of such consideration and the Employer in fact
commences conducting business therein during the Initial Term, any
Extended Term(s) or during the six-month period thereafter, provided
that any geographic area included under this clause (C) will cease to
be included if the Employer ceases to engage in business in such
geographic area.
The parties acknowledge and agree that for purpose of this Section 7,
the term "Employer" includes the Employer, its related and affiliated
entities, and their respective predecessors, successors and assigns.
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(e) Principals and Customers. For purposes of construing the
provisions of this Section 7, any and all persons, firms and entities for
whom the Employer performs services, to whom the Employer sells or from
whom the Employer solicits and obtains orders, in the course of its
business, are and shall be deemed the principals and/or customers of the
Employer (or its principals), both during and after the period of the
Executive's employment with the Employer, notwithstanding the fact that
some or all of said persons, firms or entities may have been induced to
give their business to the Employer by the solicitation by the Executive,
or by someone on his or her behalf, either during the usual working hours
of the Executive or otherwise, and notwithstanding the fact that all or
some of such persons, firms or entities may have previously been principals
or customers of (i) the Executive, (ii) any corporation or other entity
with which the Executive was formerly employed or which was controlled or
owned, in whole or in part, by the Executive, or (iii) any principal of
such corporation or entity.
(f) Third-Party Agreements and Rights. The Executive hereby confirms
that the Executive is not bound by the terms of any agreement with any
previous employer or other party which restricts in any way the Executive's
use or disclosure of information or the Executive's engagement in any
business. The Executive represents to the Employer that the Executive's
execution of this Agreement, the Executive's employment with the Employer
and the performance of the Executive's proposed duties for the Employer
will not violate any obligations the Executive may have to any such
previous employer or other party. In the Executive's work for the Employer,
the Executive will not disclose or make use of any information in violation
of any agreements with or rights of any such previous employer or other
party, and the Executive will not bring to the premises of the Employer any
copies or other tangible embodiments of non-public information belonging to
or obtained from any such previous employment or other party.
(g) Litigation and Regulatory Cooperation. During and after the
Executive's employment, the Executive shall cooperate fully with the
Employer in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of the
Employer which relate to events or occurrences that transpired while the
Executive was employed by the Employer. The Executive's full cooperation in
connection with such claims or actions shall include, but not be limited
to, being reasonably available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Employer at
mutually convenient times. During and after the Executive's employment, the
Executive also shall cooperate fully with the Employer in connection with
any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or
occurrences that transpired while the Executive was employed by the
Employer. The Employer shall reimburse the Executive for any reasonable
out-of-pocket expenses incurred in connection with the Executive's
performance of obligations pursuant to this Section 7(g).
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(h) Injunction. The Executive agrees that it would be difficult to
measure any damages caused to the Employer which might result from any
breach by the Executive of the promises set forth in this Section 7, and
that in any event money damages would be an inadequate remedy for any such
breach. Accordingly, subject to Section 8 of this Agreement, the Executive
agrees that if the Executive breaches, or proposes to breach, any portion
of this Agreement, the Employer shall be entitled, in addition to all other
remedies that it may have, to an injunction or other appropriate equitable
relief to restrain any such breach without showing or proving any actual
damage to the Employer.
8. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in Boston, Massachusetts in accordance with the Employment Dispute
Resolution Rules of the AAA, including, but not limited to, the rules and
procedures applicable to the selection of arbitrators. In the event that any
person or entity other than the Executive or the Employer may be a party with
regard to any such controversy or claim, such controversy or claim shall be
submitted to arbitration subject to such other person or entity's agreement.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. This Section 8 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 8 shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate; provided that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 8.
9. Consent to Jurisdiction. To the extent that any court action is
permitted consistent with or to enforce Section 8 of this Agreement, the parties
hereby consent to the jurisdiction of the courts of the Commonwealth of
Massachusetts and (to the extent subject matter jurisdiction exists therefor) of
the United States District Court for the District of Massachusetts. Accordingly,
with respect to any such court action, the Executive (a) submits to the personal
jurisdiction of such courts; (b) consents to service of process; and (c) waives
any other requirement (whether imposed by statute, rule of court, or otherwise)
with respect to personal jurisdiction or service of process.
10. Integration. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter.
11. Assignment; Successors and Assigns, etc. Neither the Employer nor the
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party; provided that the
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Employer may assign its rights under this Agreement without the consent of the
Executive in the event that the Employer shall effect a reorganization,
consolidate with or merge into any other corporation, partnership, organization
or other entity, or transfer all or substantially all of its properties or
assets to any other corporation, partnership, organization or other entity. This
Agreement shall inure to the benefit of and be binding upon the Employer and the
Executive and their respective successors, executors, administrators, heirs and
permitted assigns.
12. Enforceability. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
13. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at its main offices, attention of the
Chief Executive Officer, and shall be effective on the date of delivery in
person or by courier or three (3) days after the date mailed.
15. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Employer.
16. Governing Law. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of laws principles of such
Commonwealth. With respect to any disputes concerning federal law, such disputes
shall be determined in accordance with the law as it would be interpreted and
applied by the United States Court of Appeals for the First Circuit.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
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18. Promissory Note. The outstanding Promissory Note of the Executive to
the Employer in the original principal amount of $1,500,000 due and payable
April, 2004, shall, upon the Effective Date, be amended to provide that, upon
the occurrence of a change in control of the Employer subsequent to the
Effective Date, all amounts outstanding under such Note (including principal and
interest) will be forgiven, cancelled and deemed discharged in full.
19. Pledged Shares. Upon the Effective Date, a number of shares of common
stock of the Employer owned by the Executive which have been pledged to the
Employer to secure the payment of the Note referred to in Section 18 shall be
released from such pledge. The number of shares to be released shall equal that
number of shares having a fair market value, determined as of January 11, 1999,
equal to $1,500,000. The Executive shall have the right to designate which of
the pledged shares remain encumbered and which of such shares shall be released.
[End of text]
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Employer, by its duly authorized officer, and by the Executive, as of the
Effective Date.
EMPLOYER:
XXXXXXX AMERICAN CORPORATION
By:
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Xxxxxx X. Xxxxx
Chief Financial Officer
EXECUTIVE:
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Xxxxxx X. Xxxxxxx
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