EXHIBIT 10.1
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Agreement (this "Agreement") is made and entered into as of June 2, 1997,
by and among Pinnacle Automation, Inc., a Delaware corporation ("Pinnacle"),
Xxxxx Systems, Inc., a Delaware corporation ("Xxxxx"), and Xxxxxxx X. Xxxxxxxx
("Executive").
W I T N E S S E T H:
WHEREAS, the parties hereto are the original parties to that certain
Amended and Restated Employment Agreement, dated March 31, 1995 (the
"Superseded Agreement"), which amended, restated and superseded the original
Employment Agreement entered into among the parties hereto, dated as of
September 7, 1988;
WHEREAS, under the terms of the Superseded Agreement, Executive was the
Chairman of the Board, President and Chief Executive Officer of Pinnacle and
the Chairman of the Board and Chief Executive Officer of Xxxxx;
WHEREAS, Executive, Pinnacle and Xxxxx have agreed that, effective as of
the date hereof, Executive will resign (i) as President and Chief Executive
Officer of Pinnacle, (ii) as Chief Executive Officer of Xxxxx and (iii) from
all other offices and directorships that Executive may hold for any and all
direct and indirect subsidiaries of Pinnacle and Xxxxx, other than the
position of Chairman of the Board of each of Pinnacle and Xxxxx;
WHEREAS, Executive will continue to serve as Chairman of the Board of
Pinnacle and Xxxxx through at least the period ending on December 31, 1999
and for such longer period as the Boards of Pinnacle and Xxxxx and Executive
shall determine at that time;
WHEREAS, Pinnacle is considering a series of transactions pursuant to
which it would spin-off (the "Spin-Off") to its existing stockholders all of
the common stock of a newly formed corporation ("Newco") that would operate
the material handling business presently conducted by Xxxxx and its
subsidiaries, The Xxxxxxxx Company ("Xxxxxxxx"), White Systems, Inc.
("White"), Xxxxx Bros., Inc. ("Xxxxx") and Real Time Solutions, Inc. ("RTS");
WHEREAS, if and when the Spin-Off is consummated, (i) Xxxxx'x sole
remaining asset will be the common stock of XxXxxx, Xxxxxxx & Associates,
Inc. ("MFA"), which in turn owns all of the common stock of Xxxxxxx Software
Development Corp. ("Xxxxxxx"), and (ii) Pinnacle's sole remaining asset will
be the common stock of Xxxxx;
WHEREAS, upon consummation of the Spin-Off, (i) Pinnacle will change its
name to XxXxxx Xxxxxxx, Inc. (or such other name as determined by the Board
of Directors of Pinnacle) and commence the initial public offering (the
"IPO") of its common stock, representing ownership interests in the software
business presently conducted by MFA and
Xxxxxxx (the "Software Business") and (ii) MFA will merge with and into
Xxxxx, which will subsequently change its name to XxXxxx, Xxxxxxx &
Associates, Inc.;
WHEREAS, if the Spin-Off is consummated during the term of this
Agreement, Executive will assume the position of Chairman of the Board of
Newco, resign from the position of Chairman of the Board of Xxxxx and
thereafter serve as Chairman of the Board of each of Pinnacle and Newco
through at least the period ending on December 31, 1999 and for such longer
period as the Boards of Pinnacle and Newco and Executive shall determine at
that time; and
WHEREAS, in light of the foregoing, the parties hereto now desire to
further amend the Superseded Agreement and to restate the same in its
entirety, as hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
1. RESIGNATION OF VARIOUS OFFICES; TITLE AND DUTIES.
(A) RESIGNATION OF VARIOUS OFFICES. Pinnacle, Xxxxx and Executive
agree that effective as of the date hereof, Executive hereby resigns (i) as
the President and Chief Executive Officer of Pinnacle, (ii) as the Chief
Executive Officer of Xxxxx and (iii) from all other offices and directorships
that Executive may hold for any and all direct and indirect subsidiaries of
Pinnacle and Xxxxx, other than the position of Chairman of the Board of each
of Pinnacle and Xxxxx.
(B) TITLE AND DUTIES PRIOR TO SPIN-OFF. Pinnacle and Xxxxx hereby
agree that Executive will continue to serve as their Chairman of the Board
through the Term of the Agreement (as defined in Section 2 below). As the
Chairman of the Board of Pinnacle and Xxxxx, Executive shall have the powers
and duties customarily accorded to a Chairman of the Board, including, but
not limited to, the powers and duties set forth in the Bylaws of Pinnacle and
Xxxxx for such office. By way of example, such duties may include
participating in the development and implementation of strategic and
operating plans for Pinnacle and Xxxxx, assisting the Chief Executive Officer
of Pinnacle and Xxxxx with the day-to-day general management of Pinnacle and
Xxxxx, and performing such other functions as reasonably requested by the
Board of Directors of each of Pinnacle and Xxxxx. In connection therewith,
Executive shall be provided with an office located in Pinnacle's corporate
headquarters in St. Louis, Missouri, along with secretarial services and
other services consistent with the dignity of his position.
(C) TITLE AND DUTIES UPON CONSUMMATION OF THE SPIN-OFF. If the
Spin-Off is consummated during the Term of the Agreement, Executive (i) shall
continue to serve as the Chairman of the Board of Pinnacle through the Term
of the Agreement, (ii) shall
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assume the position of Chairman of the Board of Newco effective upon
consummation of the Spin-Off, and shall serve in such position through the
Term of the Agreement and (iii) shall resign from the Board of Directors of
Xxxxx effective upon consummation of the Spin-Off.
2. TERM OF AGREEMENT. Executive shall serve as the Chairman of the Board
of Pinnacle and Xxxxx, and, if the Spin-Off is consummated during the Term of
the Agreement, as Chairman of the Board of Pinnacle and Newco, through the
period ending on December 31, 1999 unless sooner terminated as set forth in
Section 5 hereof or by mutual agreement of the parties hereto (the "Initial
Term"). At the expiration of the Initial Term and each anniversary thereafter,
the term of this Agreement shall automatically be extended for an additional
year (the "Extension Term") unless any party hereto (or Newco, if applicable)
shall have given written notice to the other party at least sixty (60) days
prior to the end of the Initial Term or the Extension Term, as the case may be,
that it does not desire to extend the term of this Agreement. If Executive's
engagement under this Agreement is extended for an Extension Term, it shall
thereafter or during any Extension Term be terminable (other than upon
expiration) only as provided in Section 5 or by mutual agreement of the parties
hereto. The Initial Term and Extension Term (if any) shall be referred to
herein as the "Term of the Agreement." Notwithstanding the foregoing, the
provisions of Sections 3(e), 4(b), 6 and 8 shall survive the termination of this
Agreement.
3. COMPENSATION.
(A) COMPENSATION IN CALENDAR 1997. Notwithstanding Executive's
resignation from the position of President and Chief Executive Officer of
Pinnacle and Chief Executive Officer of Xxxxx, and the other positions from
which he resigned under Section 1(a) above, Executive shall be entitled to his
full base salary and bonus as provided in Section 2 of the Superseded Agreement
as if Executive held the positions of President and Chief Executive Officer of
Pinnacle and Xxxxx through December 31, 1997. As a result, Executive shall be
entitled to (i) continue to receive his 1997 base salary of $333,550 for the
remainder of 1997, payable in accordance with Pinnacle's normal payroll practice
and (ii) receive an annual bonus for 1997 determined in accordance with the
formula set forth on Exhibit A attached hereto. Such bonus shall be payable as
soon as practicable after determination of the bonus amount, but no later than
seventy-five (75) days after the end of Pinnacle's fiscal year. In addition,
Pinnacle and Xxxxx shall continue to provide Executive with each of the
following benefits through December 31, 1997:
(I) DISABILITY. In the event that Executive is unable to
perform his normal duties as Chairman of the Board of Pinnacle and Xxxxx
(or Pinnacle and Newco, if the Spin-Off is consummated prior to December
31, 1997) because of physical or mental injury or illness (a "disability")
that occurs prior to December 31, 1997, the Company shall nonetheless
continue the Executive's base salary as currently in effect through
December 31, 1997. In addition, the Company shall continue to maintain in
effect through December 31, 1997 the long-term disability insurance
coverage provided to Executive pursuant to Section 4(a) of the Superseded
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Agreement. Disability shall be certified to the Company by a physician
selected by the Executive and satisfactory to the Company in its reasonable
judgment.
(II) AUTOMOBILE. Pinnacle and Xxxxx shall continue to provide
Executive with the use of the leased automobile currently provided to
Executive pursuant to Section 4(c) of the Superseded Agreement until March
1998, the end of the lease term for such automobile. At or prior to the
end of the lease term, Executive shall return the automobile to such
location as specified in the lease.
(III) CLUB MEMBERSHIP. Pinnacle and Xxxxx shall continue to
pay the periodic dues and assessments for Executive's membership in a
country club and a downtown or luncheon club of his selection pursuant to
Section 4(d) of the Superseded Agreement through December 31, 1997,
provided the aggregate annual dues and assessments payable by Pinnacle
and/or Xxxxx for the year ending December 31, 1997 shall not exceed
$10,000.
(IV) HEALTH INSURANCE. Pinnacle shall provide Executive and his
dependents health insurance coverage under its group health insurance plan
in effect for its executives from time to time.
(V) VACATION. Executive shall be entitled to four (4) weeks of
vacation time in 1997.
(VI) ADDITIONAL BENEFITS. Executive shall be entitled to
continue to receive any additional benefits made available by Pinnacle or
Xxxxx (or Pinnacle and Newco, if the Spin-Off in consummated prior to
December 31, 1997) to any of their directors, officers or senior management
employees through December 31, 1997.
(B) COMPENSATION IN CALENDAR 1998 AND CALENDAR 1999. Beginning in
calendar 1998 and continuing thereafter for the remainder of the Initial Term of
the Agreement, Executive shall receive an aggregate annual salary of $100,000
for his role as Chairman of the Board of Pinnacle and Xxxxx, payable in
accordance with Pinnacle's normal payroll practice; PROVIDED, HOWEVER, if the
Spin-Off is consummated during the Initial Term of this Agreement, (i) Executive
shall receive an annual salary of $100,000 for serving as the Chairman of the
Board of Newco for the period commencing upon consummation of the Spin-Off and
ending upon termination of the Initial Term of this Agreement (which period
shall in no event commence prior to January 1, 1998 for purposes of compensation
under this Section 3(b)) and (ii) Executive shall no longer be entitled to
receive any payments from Pinnacle for serving as its Chairman of the Board
other than such payments as may be received by the other non-employee directors
of Pinnacle.
(C) COMPENSATION DURING THE EXTENSION TERM. If the Term of this
Agreement is extended beyond the Initial Term pursuant to Section 2 above,
Executive's annual compensation as the Chairman of the Board of Pinnacle, Xxxxx
and/or Newco shall be
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determined by the parties hereto at the beginning of each year beyond the
Initial Term during which Executive serves as the Chairman of the Board of
Pinnacle, Xxxxx and/or Newco.
(D) BONUS UPON CONSUMMATION OF THE IPO. If the IPO is consummated on
or prior to December 31, 1998, Executive shall receive a cash bonus of $300,000
payable by either Pinnacle or Newco, as shall be determined by the Boards of
Directors of Pinnacle and Newco, on the date of consummation of the IPO.
(E) DEFERRED COMPENSATION. Pursuant to Section 4(e) of the
Superseded Agreement and this Section 3(e), commencing in 1998, Pinnacle shall
make an annual payment in the amount of $237,500 to Executive (commencing in
1998) for the longer of ten (10) years and the remainder of his lifetime. The
first payment under this Section 3(e) will be made on January 31, 1998 and
subsequent payments will be made on each anniversary thereof. In the event
Executive dies before having received ten (10) annual payments, the remaining
payments for the fixed ten (10) year period shall be paid to his estate or his
beneficiary designated in writing to Pinnacle (or, in the event the Spin-Off is
consummated prior to the tenth (10th) such payment being made to Executive or
his designated beneficiary, as designated in writing to Newco). The parties
hereto acknowledge and agree that the deferred compensation payments provided by
this Section 3(e) are in addition to any other payments owing to Executive under
this Agreement. The parties hereto further acknowledge and agree that Executive
will be a general unsecured creditor of Pinnacle with respect to payments owing
to him under this Section 3(e), and that Executive will not be able to assign
the benefits provided to him under this Section 3(e) other than to his
designated beneficiary or estate upon his death.
4. OTHER EXECUTIVE BENEFITS. From the date hereof and through the Term
of the Agreement, Pinnacle (or Newco, upon consummation of the Spin-Off during
the Term hereof) shall provide Executive with the following benefits:
(A) HEALTH INSURANCE. Pinnacle shall provide Executive and his
dependents health insurance coverage under its group health insurance plan in
effect for its executives from time to time. The parties hereto agree that upon
consummation of the Spin-Off, Newco will assume the obligations of Pinnacle
under this Section 4(a).
(B) SPLIT DOLLAR LIFE INSURANCE. Pinnacle will continue to maintain
in full force and effect the split-dollar life insurance policy in the amount of
$3,000,000 (the "Split-Dollar Policy") that was obtained for, and that is owned
by, Executive pursuant to that certain Split Dollar Agreement among Pinnacle,
Executive and the trust established by and for the benefit of Executive.
Subject to Section 8 below, Pinnacle will make or cause to be made the annual
premium payments owing on the Split-Dollar Policy for the remainder of
Executive's lifetime.
(C) CLUB MEMBERSHIP. During the Term of the Agreement, Pinnacle
shall continue to pay the periodic dues and assessments for Executive's
membership in the St.
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Louis Club, provided the aggregate annual dues and assessments payable by
Pinnacle for the calendar years from and after 1998 shall not exceed $2,000.
The parties hereto acknowledge and agree that upon consummation of the
Spin-Off, Newco will assume the obligations of Pinnacle under this Section
4(c).
(D) BUSINESS EXPENSES. Pinnacle and Xxxxx (and, upon consummation of
the Spin-Off, Pinnacle and Newco) will pay or reimburse Executive for any
reasonable out-of-pocket expenses, including such travel expenses commensurate
with the dignity of the office of Chairman of the Board as may be incurred by
Executive in the course of providing his services hereunder. Such reimbursement
shall be made within 30 days after receipt of a statement therefor from
Executive setting forth in reasonable detail the expenses for which
reimbursement is requested, accompanied by reasonable documentation evidencing
such expenses.
5. TERMINATION OF AGREEMENT. Subject to Section 8 below, this Agreement
shall terminate on the earlier of (i) a Sale Event (as defined below), (ii) the
death of Executive during the term hereof, (iii) the failure or unwillingness of
Executive to perform the duties specified in Section 1 of this Agreement or (iv)
the delivery of written notice pursuant to Section 2 hereof of any party's
desire to terminate this Agreement upon the expiration of the Initial Term or
upon any anniversary thereafter; PROVIDED, HOWEVER, that nothing contained in
this Section 5 or elsewhere herein shall terminate or in any way affect
Pinnacle's and/or Newco's obligations to provide Executive with the compensation
provided for in Sections 3(a) and 3(e) hereof and to provide Executive with the
full benefits of the Split Dollar Agreement as provided for in Section 4(b)
hereof. Notwithstanding the foregoing, the provisions of Sections 3(e), 4(b), 6
and 8 shall survive the termination of this Agreement.
A "SALE EVENT" shall mean any of following transactions (or series of
related transactions) other than the Spin-Off, an initial public offering
(including the IPO) or a management-led buyout:
(1) a sale or other disposition of all or substantially all of
the assets of Pinnacle and its subsidiaries, taken as a whole, or, upon
consummation of the Spin-Off, of Newco and its subsidiaries, taken as a
whole;
(2) a sale or other disposition of the capital stock of
Pinnacle, or, upon consummation of the Spin-Off, of Newco (either by
Pinnacle or Newco, as the case may be, or the existing stockholders of
Pinnacle or Newco, as the case may be) which has the effect, on a pro forma
basis after giving effect to such transaction, of transferring at least 50%
of the outstanding capital stock of Pinnacle or Newco, as the case may be,
in a transaction other than an underwritten initial public offering (except
to the extent that such initial public offering includes a secondary
tranche which would have the effect of clause (3) below);
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(3) a sale or other disposition of at least a majority of the
capital stock of Pinnacle held as of the date hereof by the Management
Stockholders and Raebarn Stockholders (as defined in the Stockholders
Agreement).
6. INDEMNIFICATION. Pinnacle and Xxxxx agree to indemnify Executive to
the fullest extent permitted under applicable law as provided in their Bylaws
for directors generally. Pinnacle shall also continue in effect the Indemnity
Agreement entered into between Pinnacle and Executive pursuant to which Pinnacle
has agreed to indemnify and hold Executive harmless from certain liabilities
arising in the course of discharging his duties hereunder.
7. NOTICES. Any notice to be given pursuant to this Agreement shall be
in writing and shall be deemed duly given (i) three days after deposit in the
mail, certified mail, return receipt requested, to the party to receive such
notice at the address specified below or (ii) immediately upon actual delivery
and receipt of the notice:
If to Pinnacle or Xxxxx, to: 000 X. Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn.: Chief Executive Officer
Facsimile No.: (000) 000-0000
If to Executive, to: Xx. Xxxxxxx X. Xxxxxxxx
00000 Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
The parties hereto may change their names and/or addresses for
purposes of this Section by giving the other written notice of the new name
and/or address in the manner set forth above.
8. SUCCESSORS AND ASSIGNS.
(A) GENERAL. This Agreement shall bind and shall inure to the
benefit of Pinnacle, Xxxxx and any and all of their respective successors and
assigns. This Agreement is personal to Executive and shall not be assignable by
Executive, except for certain benefits hereunder which are payable to
Executive's heirs, beneficiaries and/or to his estate upon the death of
Executive.
(B) PRIOR TO CONSUMMATION OF THE SPIN-OFF. Pinnacle may assign this
Agreement to any entity (an "Acquiror") which (i) purchases all or substantially
all of its assets or (ii) is a direct or indirect successor (whether by merger,
sale of stock or transfer of assets) of Pinnacle; PROVIDED that Pinnacle shall
only be permitted to assign its rights and obligations hereunder (whether by
operation of law or otherwise) if the Acquiror (A) expressly assumes all of the
payment obligations of Pinnacle hereunder (except with respect to any payments
which may be made to Executive as a non-employee director of
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Pinnacle) and (B) the Acquiror, after giving pro forma effect to the
acquisition of Xxxxx, has at least the Minimum Credit Rating (as hereinafter
defined) specified in Section 8(e) below; PROVIDED, FURTHER, that if the
Acquiror does not satisfy each of (A) and (B) above, Pinnacle shall purchase
the self-amortizing annuity on Executive's behalf as provided for in Section
8(f) below.
(C) CONSUMMATION OF THE SPIN-OFF. Notwithstanding anything contained
herein, the consummation of the Spin-Off will not accelerate any payments
hereunder or otherwise give rise to any obligation of Pinnacle or Newco to
purchase an annuity on Executive's behalf pursuant to Section 8(f) below so long
as Newco expressly assumes all of Pinnacle's obligations hereunder as a part of,
and a condition to, the Spin-Off.
(D) FROM AND AFTER CONSUMMATION OF THE SPIN-OFF. Upon consummation
of the Spin-Off, Pinnacle shall cause Newco to assume the obligations of
Pinnacle to make payments to Executive under this Agreement (except with respect
to any payments which may be made to Executive as a non-employee director of
Pinnacle). Upon such assumption by Newco of Pinnacle's payment obligations
hereunder, Pinnacle shall be relieved of any further payment obligations to
Executive under this Agreement. Newco may subsequently assign this Agreement to
an Acquiror which (i) purchases all or substantially all of its assets or
(ii) is a direct or indirect successor (whether by merger, sale of stock or
transfer of assets) of Newco; PROVIDED that Newco shall only be permitted to
assign its rights and obligations hereunder (whether by operation of law or
otherwise) if the Acquiror (A) expressly assumes all of the payment obligations
of Newco hereunder and (B) the Acquiror, after giving pro forma effect to the
acquisition of Newco, has at least the Minimum Credit Rating specified in
Section 8(e) below; PROVIDED, FURTHER, that if the Acquiror does not satisfy
each of (A) and (B) above, Newco shall purchase the self-amortizing annuity on
Executive's behalf as provided for in Section 8(f) below.
(E) SALE OF XXXXX; MINIMUM CREDIT RATING. Subject to the last
sentence of this Section 8(e) below, neither Pinnacle, Newco nor Xxxxx, as the
case may be, shall be permitted to sell all or substantially all of the capital
stock or assets of Xxxxx considered on a stand-alone basis and without giving
effect to any of its direct or indirect subsidiaries (whether before or after
the Spin-Off, but not including any transfer or sale of Xxxxx which is effected
in connection with the Spin-Off), unless (i) the Acquiror expressly assumes all
of the payment obligations of Pinnacle and/or Newco hereunder (except with
respect to any payments which may be made to Executive as a non-employee
director of Pinnacle) and (ii) the Acquiror, after giving pro forma effect to
the acquisition of Xxxxx, has a credit rating (the "Minimum Credit Rating") from
Standard & Poor's Corporation ("S&P") of no less than "B-" or the equivalent
such rating from Xxxxx'x Investor Services, Inc. ("Moody's") or Xxxxx Investors
Service, L.P. ("Fitch"). In the event that the Acquiror has not been assigned a
credit rating from any of S&P, Xxxxx'x or Fitch, then Pinnacle, Newco or Xxxxx,
as the case may be, shall engage an investment banking firm of national
reputation to determine what credit rating would be assigned to the Acquiror, on
a pro forma basis giving effect to the purchase of Xxxxx, with the fees of such
investment banking firm to be paid by Pinnacle,
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Newco or Xxxxx, as the case may be. The notional credit rating as determined
by such investment banking firm will be final and conclusive. Pinnacle, Newco
or Xxxxx, as the case may be, shall be permitted to sell all or substantially
all of the capital stock or assets of Xxxxx without regard to the conditions
set forth in clauses (i) and (ii) of this Section 8(e) so long as it
purchases the self-amortizing annuity on Executive's behalf as provided for
in Section 8(f) below.
(F) PURCHASE OF ANNUITY. In the event that under Section 8(b), 8(d)
or 8(e) above, (i) the Acquiror fails to expressly assume all of the payment
obligations to Executive hereunder (except with respect to any payments which
may be made to Executive as a non-employee director of Pinnacle, Xxxxx or Newco)
OR (ii) the Acquiror, after giving pro forma effect to the acquisition of
Pinnacle, Newco or Xxxxx, as the case may be, fails to have at least the Minimum
Credit Rating specified in Section 8(e) above, then Pinnacle, Newco or Xxxxx,
as the case may be, shall purchase a self-amortizing annuity from an insurance
company having an A.M. Best's rating of no less than "A" that provides, for the
balance of Executive's actuarial life as determined by the insurance company
from which the annuity is purchased, the amounts necessary to fund for the
remainder of Executive's actuarial life (A) the deferred compensation payment
obligations to Executive under Section 3(e) above and (B) the annual premium
payments on the Split-Dollar Policy under Section 4(b) above. The annuity will
be deposited into a rabbi trust (the "Rabbi Trust") established for the benefit
of Executive. The Rabbi Trust shall be irrevocable and shall provide that the
trust assets can be used for no purpose other than to provide said deferred
compensation payments and Split-Dollar Policy premium payments to Executive or
on his behalf, or to pay the claims of the creditors of Pinnacle, Newco or
Xxxxx, as the case may be, in the event that Pinnacle, Newco or Xxxxx, as the
case may be, becomes insolvent. If a separate annuity and trust are required to
provide for each of the deferred compensation payments and Split-Dollar Policy
premium payments, then Pinnacle, Newco or Xxxxx, as the case may be, shall
purchase two self-amortizing annuities under this Section 8(f) and deposit such
annuities in the respective Rabbi Trusts on Executive's behalf.
(G) SALE OF SIGNIFICANT SUBSIDIARIES. Notwithstanding anything
herein to the contrary, Pinnacle, Newco and/or Xxxxx shall be permitted to sell
the assets or capital stock of any of Buschman, Busse, MFA, RTS, Xxxxxxx, White
and/or any direct or indirect subsidiary of Pinnacle acquired after the date
hereof without any restriction or limitation whatsoever pursuant to this
Agreement, including without limitation, any acceleration of payments due
hereunder or obligation to purchase an annuity as contemplated by Section 8(e)
above.
9. WAIVER OF BREACH. The waiver by Pinnacle, Xxxxx or Executive of a
breach of any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach by the other.
10. ENTIRE AGREEMENT/MODIFICATION. This Agreement contains all of the
covenants and agreements among the parties with respect to such engagement in
any manner
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whatsoever. Any modification of this Agreement will be effective only if it
is in writing, signed by the party to be charged.
11. PARTIAL INVALIDITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
12. GOVERNING LAW. The validity of this Agreement and the interpretation
and performance of all of its terms shall be governed by the laws of the State
of Missouri.
13. ARBITRATION. Any dispute, controversy or claim arising out of or
relating to this Agreement or the breach, termination, or invalidity hereof,
shall promptly and expeditiously be submitted to binding arbitration in
accordance with the rules of procedure of the American Arbitration Association
in effect at the time of such arbitration proceeding utilizing a single
arbitrator. The arbitrator shall be a retired or former judge of any appellate
court or Superior Court of the State of Missouri, any United States appellate
court or the United States District Court for any District in the State of
Missouri, provided that such individual has substantial professional experience
with regard to employment matters. The arbitration shall be held in St. Louis,
Missouri. Either party may apply to an appropriate tribunal having jurisdiction
for specific performance of the other party's obligations under this provision.
The arbitrator shall have the right to retain and consult with experts and
competent authorities skilled in the matters under arbitration, but any such
consultation shall be made in the presence of both parties with full right on
their part to cross-examine such experts and authorities. The parties further
agree that the decision of the arbitrator shall, if requested by either party,
transmit to all interested parties the decision in the form of an "official
notice" duly signed by the arbitrator. Judgment upon the arbitration award
rendered may be entered in any court having jurisdiction or application may be
made to such court for a judicial acceptance of the award and an order of
enforcement. The prevailing party in any such dispute under this Section 13
shall be entitled to reimbursement of reasonable attorneys' fees and
disbursements from the non-prevailing party.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but together which
shall constitute one and the same document.
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IN WITNESS WHEREOF, Pinnacle and Xxxxx have caused this Agreement to be
executed on their behalf by their duly authorized officers, and Executive has
executed the same as of the day and year first written above.
PINNACLE AUTOMATION, INC.
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------------
Xxxxxxx X. X'Xxxxx,
President and Chief Executive Officer
XXXXX SYSTEMS, INC.
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------------
Xxxxxxx X. X'Xxxxx,
President and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
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EXHIBIT A
PINNACLE AUTOMATION, INC.
XXXXX SYSTEMS, INC.
1997 BONUS PLAN FOR XXXXXXX X. XXXXXXXX
The annual bonus is based on the total EBITDAM achieved by Pinnacle
Automation, Inc. ("Pinnacle") in 1997. The 1997 budgeted EBITDAM for Pinnacle
is $27,000,000. The annual bonus amount earned is calculated as follows:
% OF BUDGETED
PINNACLE EBITDAM BONUS
ACHEIVED AMOUNT
---------------- ---------
80% $ 0
85% $100,000
90% $200,000
95% $300,000
100% $360,000
105% $420,000
110% $480,000
115% $540,000
120% $600,000
The earned bonus amount for 1997 (if any) will be fully vested and will
be paid to Executive as soon as practicable after determination of the bonus
amount, but no later than seventy-five (75) days after the end of Pinnacle's
fiscal year.
