Exhibit 10.6
AGREEMENT
This Agreement is effective as of the 30th day of September, 1995, by and
between Anuhco, Inc., a Delaware corporation ("Anuhco") and Xxxxx X. Xxxxxxx
("Employee").
RECITALS:
1. Anuhco has recruited Employee to serve as an executive officer of
Xxxxxx Cartage Company, an Iowa corporation ("Xxxxxx"), a wholly owned
subsidiary of Anuhco.
2. Based upon prior experiences, Employee has insisted upon
financial assurance in the event that, during the term of his employment, a
Change of Control (as hereinafter defined) shall occur with respect to Anuhco or
Xxxxxx.
3. Anuhco has concluded that it is in its best interest to assure
Employee's continuing dedication notwithstanding the occurrence, which might
otherwise be unsettling, of a change in control, and so that Employee may be
able, without being influenced by the uncertainties of his own situation, to
participate and aid in the analysis of any proposal which might result in a
change of control
NOW, THEREFORE, in consideration of the premises and the terms and
provisions hereinafter set forth, the parties hereby agree as follows:
AGREEMENTS:
1. In the event that (1) a Change of Control of Anuhco or Xxxxxx
shall occur at a time when Anuhco, directly or through its affiliates, owns all
of the issued and outstanding common stock of Xxxxxx and (2) within two years
after such Change of Control, Employee's employment with Xxxxxx or Anuhco is
terminated other than by Employee, for any reason other than Employee's
permanent disability, death, normal retirement or Good Cause (as hereinafter
defined), or is terminated by Employee for Stated Cause (as hereinafter
defined), Anuhco shall promptly pay to Employee as termination compensation the
amount provided in paragraph 5 hereof.
2. For purposes of this Agreement, "Good Cause" is defined as (1) a
material breach by Employee of his obligations under an Employment Agreement of
even date herewith (other than as a result of death, disability or normal
retirement) which is demonstrably willful and deliberate on Employee's part,
committed in bad faith, or without reasonable belief that such breach is in the
best interest of Anuhco or Xxxxxx and is not remedied within a reasonable period
of time after receipt of written notice specifying the breach; (2) conviction of
Employee of a felony; (3) fraud committed by Employee against Anuhco or Xxxxxx,
or misappropriation by Employee of the assets of either thereof; or (4) breach
of Employee's duty of loyalty or other fiduciary duty or obligation to Anuhco or
Xxxxxx which is not remedied within a reasonable period of time after receipt of
written notice specifying the same.
3. For purposes of this Agreement, "Stated Cause" is defined as
(1) any changes in Employee's duties and responsibilities for Xxxxxx and Anuhco
which are not approved by him; (2) involuntary relocation or proposed relocation
of Employee from Carroll, Iowa; or (3) any reduction in the salary or benefits
to which Employee is entitled pursuant to an Employment Agreement of even date
herewith.
4. For purposes of this Agreement, a Change of Control of Xxxxxx
shall have occurred if Anuhco and its affiliates cease to own at least 51% of
the issued and outstanding voting stock thereof, and a Change of Control of
Anuhco shall have occurred if, as the result of the acquisition of the assets or
securities of Anuhco by a single person or group, as defined in Section 13 (d)
(3) of the Securities Exchange Act of 1934, or a merger, consolidation,
contested election of directors or any combination of the foregoing
transactions, (a "Transaction"), either of the following shall occur:
a. The persons who were directors of Anuhco
immediately before the Transaction shall cease to
constitute a majority of the board of directors of
Anuhco or of any parent of or successor to Anuhco,
or
b. Such person or group becomes the
beneficial owner, directly or indirectly of
substantially all of the assets of Anuhco or
securities of Anuhco representing 30% or more of
the combined voting power of Anuhco's then
outstanding securities.
5. The compensation to which Employee shall be entitled pursuant to
Paragraph 1 hereof shall be equal to 2.99 times the average annual compensation
from Anuhco and Xxxxxx includable in Employee's gross income, for federal income
tax purposes, for the three most recent years ending before the Transaction, or
such lesser period as Employee shall have been an employee of Xxxxxx. In no
event shall any amount be required to be paid hereunder that would constitute an
"excess parachute payment" within the meaning of S 280G(b) of the Internal
Revenue Code.
6. In the event that Employee's employment terminates after a change
in control so as to entitle him to the compensation provided in paragraph 5
hereof, Employee shall be additionally entitled to:
a. Immediate 100% vesting of all Incentive
Compensation provided or to be provided pursuant
to the Employment Agreement of even date herewith,
and
b. All benefits to which he would have been
entitled had he retired at normal retirement age
from Xxxxxx pursuant to Supplemental Benefit
Agreement of even date herewith.
c. Three years of continued participation
in medical and life insurance plans of Anuhco and
Xxxxxx then in effect and in which Employee was
participating immediately prior to the
Transaction, provided, however, that if there are
any limitations on such participation provided in
such plans, Anuhco shall provide Employee during
such three year period equivalent benefits not
less favorable to Employee than those to which he
would have been entitled as a participant in such
plans at the same time of the Transaction, except
that Employee's entitlement to such participation
shall not extend beyond his normal retirement
date.
5. Anuhco shall pay all reasonable legal fees and expenses incurred by
Employee as a result of any contest by Anuhco of the validity or enforceability
of this Agreement.
6. This Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective legal representatives, successors and
assigns, and shall be construed in accordance with and governed by the laws of
the State of Kansas.
7. Notwithstanding that Employee's position with Xxxxxx is at-will,
Employee's rights hereunder may not be modified or amended, without his written
consent, after a Transaction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused the same to be executed, by their duly authorized officers, as of the
date and year first above written.
ANUHCO, INC.
By: /s/Xxxxxxx X. X'Xxxx
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
