EXHIBIT 10.9
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Xxxxxx X. Xxxxxxx (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief Xxxxxx X. Xxxxxxx
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Xxxxxxx X. Xxxxxx (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
---------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief Xxxxxxx X. Xxxxxx
Executive Officer
ATTEST:
/s/ Xxxxx Xxxxxxxx
---------------------------------
Xxxxx Xxxxxxxx, Assistant Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Xxxxxx X. Gold (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Xxxxxx X. Gold
---------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief Xxxxxx X. Gold
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx, Secretary
---------------------------------
Xxxxxxx X. Xxxxxx, Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Xxxx X. Xxxxxxx (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Xxxx X. Xxxxxxx
----------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief Xxxx X. Xxxxxxx
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Xxxxx X. Xxxxxxxx (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Xxxxx X. Xxxxxxxx
----------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief Xxxxx X. Xxxxxxxx
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Kipling X. Xxxxx (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Kipling X. Xxxxx
----------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief Kipling X. Xxxxx
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Xxxxxxx X. Xxxxx (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Xxxxxxx X. Xxxxx
----------------------------------- ----------------------------
R. Xxxx Xxxxxx, President and Chief Xxxxxxx X. Xxxxx
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and J. Xxxxxx Xxxxxxxxx, XX
(the "Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ J. Xxxxxx Xxxxxxxxx, XX
---------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief J. Xxxxxx Xxxxxxxxx, XX
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Secretary
SENIOR EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT dated as of the 28th day of January 1997 between The Xxxxxx Group,
Inc., a Maryland corporation (the "Corporation"), and Xxxxx X. Xxxxxxxxxx (the
"Executive").
In consideration of the services provided by the Executive and the covenants
and agreements contained herein, and for other good and valuable consideration
the sufficiency of which is acknowledged, the Corporation and the Executive
agree as follows:
1. Termination After Change of Control. The following payments and
benefits will be provided to the Executive by the Corporation in the
event of a Termination of Employment (as hereinafter defined) of the
Executive within three (3) years after a Change of Control (as
hereinafter defined) of the Corporation:
1.1 Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Corporation, the Corporation will pay to the
Executive a lump sum cash amount equal to two (2) times the
highest Annual Compensation (as hereinafter defined) paid to the
Executive by the Corporation for any of the three (3) calendar
years immediately preceding the date of Termination of Employment.
1.2 Accelerated Vesting and Supplemental Payments. All rights, awards
and benefits of the Executive in the TRG Incentive Plan, the
deferred compensation plans (including the Retirement and Stock
Ownership Plan, Executive and Director Deferred Compensation Plan
and any successor or replacements plans) and any incentive, bonus
or benefit plans of the Corporation in which the Executive
participates shall immediately vest in full and the Executive
shall be paid in a lump sum within thirty (30) days of the date of
Termination of Employment. To the extent that any of the plans of
the Corporation would not under applicable law permit accelerated
vesting, the Executive will be paid supplementally by the
Corporation the amount of additional benefits that would be
payable if full vesting had taken place as of the date of
Termination of Employment. All supplemental payments are provided
on an unfunded basis, are not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code, and
shall be payable solely from the general assets of the
Corporation.
1.3 Insurance and Other Special Benefits. The Executive's
participation in the life, accident and health insurance, employee
welfare benefit plans (as defined in the Employee Retirement
Income Security Act of 1974) and other fringe benefits (the
"Benefits") provided to the Executive prior to the Change of
Control or the Termination of Employment shall be continued or
equivalent benefits provided by the Corporation, at no cost to the
Executive, for a period of two (2) years from the date of the
Executive's Termination of Employment. If for any reason the
Corporation is unable to continue the Benefits, as required by the
preceding sentence, the Corporation shall pay to the Executive a
lump sum cash payment equal to the value of the Benefits which the
Corporation is unable to provide.
1.4 Relocation Assistance. Should the Executive move his residence in
order to pursue other business opportunities within two (2) years
after the date of the Termination of Employment, he will be
reimbursed for any expenses incurred in that relocation, including
taxes payable on the reimbursement, which are not reimbursed by
another employer. Benefits under this paragraph will include
assistance in selling the Executive's home and all other
assistance and benefits which are provided by the Corporation
under its relocation plan as in effect immediately prior to the
Change of Control or the Termination of Employment.
1.5 Stock Rights. All stock options, stock appreciation rights, stock
purchase rights, restricted stock rights and any similar rights
which the Executive holds shall become fully vested and be
exercisable on the Executive's last day of employment with the
Corporation.
1.6 Outplacement Assistant. The Executive shall be reimbursed by the
Corporation for the costs of all outplacement services obtained by
the Executive within the two (2) year period after the date of the
Executive's Termination of Employment provided the total
reimbursement shall be limited to an amount equal to twenty-five
percent (25%) of the Executive's Annual Compensation for the
calendar year immediately preceding the date of the Executive's
Termination of Employment.
1.7 Definitions.
(i) A "Change of Control" shall take place on the date of the
earlier to occur of any of the following events:
(a) The acquisition by any person, other than the
Corporation or any employee benefit plan of the
Corporation, of beneficial ownership of 20% or more of
the combined voting power of the Corporation's then
outstanding voting securities;
(b) The first purchase under a tender offer or exchange
offer, other than an offer by the Corporation or any
employee benefit plans of the Corporation, pursuant to
which shares of common stock have been purchased;
(c) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election or the nomination for the
election by stockholders of the Corporation of each
new director was approved by a vote of at least two-
thirds of the directors then still in office who were
directors at the beginning of the period; or
(d) Approval by stockholders of the Corporation of a
merger, consolidation, liquidation or dissolution of
the Corporation, or the sale of all or substantially
all of the assets of the Corporation.
(ii) "Annual Compensation" shall mean the sum of the base salary
and annual bonus paid to the Executive and all vested
amounts credited to the Executive under any incentive
compensation or other benefit plans of the Corporation in
which the Executive participates during the applicable
calendar year. In the event the Executive has not been
employed by the Corporation or received a base salary and
annual bonus for a complete calendar year, the determination
of Annual Compensation shall involve a pro forma projection
of base salary, annual bonus and vested amounts credited
under incentive compensation or other benefit plans for a
complete calendar year based upon the amounts that were paid
or credited during the partial year of employment or partial
year of receipt of compensation and any other information
deemed appropriate.
(iii) A "Termination of Employment" shall take place in the event
that (a) the Executive's employment is terminated for any
reason other than as a consequence of death, disability or
normal retirement, (b) the Executive is assigned any duties
or responsibilities that are inconsistent in any respect
with his position, duties, responsibilities or status prior
to the Change of Control, (c) the Corporation requires the
Executive to be based at a location which is more than fifty
(50) miles from the Executive's then current primary
residence, (d) the Executive's base salary is reduced, or
(e) the Executive experiences in any year a reduction in the
ratio of his incentive compensation, bonus or other such
payments to his base compensation which is greater than the
average reduction in the ratio of incentive compensation,
bonus or other such payments to base compensation
experienced by all of the Corporation's or the successor
corporation's executive officers.
1.8 Subsequent Imposition of Excise Tax. If it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the payments to the
Executive is considered to be an "excess parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be an "excess parachute payment" at the
time of payment, the Executive shall be entitled to receive a lump
sum cash payment sufficient to place the Executive in the same net
after-tax position, computed by using the "Special Tax Rate" as
such term is defined below, that the Executive would have been in
had such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under this
Section 1.8 is made.
2. General.
2.1 Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Corporation, to the
extent permitted by applicable law and the Corporation's Charter
and By-laws, indemnifies the Executive for his reasonable
attorneys' fees and disbursements incurred in such litigation.
2.2 Dispute Resolution. Either the Executive or the Corporation may
elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by arbitration, by
providing written notice of such election to the other party,
specifying the nature of the dispute to be arbitrated. If
arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location agreed to
by the Corporation and the Executive within fifty (50) miles from
the location of the Executive's principal place of employment in
accordance with the rules of the American Arbitration Association.
Judgment may be entered on the award of the arbitrators in any
court having competent jurisdiction.
If the Executive prevails in any litigation or arbitration seeking
to enforce the provisions of this Agreement, the Executive shall
be entitled to reimbursement by the Corporation of all expenses,
including reasonable legal fees and expenses, and costs and
disbursements incurred as a result of such dispute or legal
proceeding.
2.3 Payment of Obligations Absolute. The Corporation's obligation to
pay the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be
affected by any circumstances, including any offset, counterclaim,
recoupment, defense or other right which the Corporation may have
against the Executive or anyone else. All amounts payable by the
Corporation shall be paid without notice or demand. Each and
every payment made by the Corporation shall be final and the
Corporation will not seek to recover all or any part of such
payment. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements
made under this Agreement, and the obtaining of any other
employment shall not result in a reduction of the Corporation's
obligations to make the payments, benefits and arrangements
required to be made under this Agreement.
2.4 Continuing Obligations. The Executive shall retain in confidence
any confidential information known to him concerning the
Corporation, its subsidiaries and their respective businesses so
long as such information is not publicly disclosed.
2.5 Successors. This Agreement shall be binding upon and inure to the
benefit of the Executive and his estate, and the Corporation and
any successor of the Corporation, but neither this Agreement nor
any rights arising hereunder may be assigned or pledged by the
Executive. All references in this Agreement to the Corporation
shall include its subsidiaries and affiliates and any successors
and assigns of the Corporation. Any successor of the Corporation
shall be deemed substituted for all purposes of the "Corporation"
under the terms of this Agreement. As used in this Agreement, the
term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or the
business of the Corporation. In all cases, the Corporation shall
remain jointly and severally liable for all obligations hereunder.
2.6 Severability. Any provisions in this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating or affecting
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
2.7 Controlling Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
2.8 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual
agreement of the Executive and the Corporation in a written
instrument executed by the Executive and the Corporation.
2.9 Tax Withholding. The Corporation may withhold all federal, state,
city or other taxes required pursuant to any law or governmental
regulation or ruling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE XXXXXX GROUP, INC. EXECUTIVE
/s/ R. Xxxx Xxxxxx /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------- -----------------------------
R. Xxxx Xxxxxx, President and Chief Xxxxx X. Xxxxxxxxxx
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Secretary
