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SECOND AMENDED AND RESTATED AGREEMENT
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This is the Second Amended and Restated Agreement (the "Agreement") between
Xxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxxxxx'x, Inc. ("Xxxxxxxx'x" or the
"Company") intended to be effective as of April 3, 1997.
WHEREAS, Xxxxxxx has served as a director of Xxxxxxxx'x since 1987; and
WHEREAS, in November 1994, Xxxxxxx was elected to serve as Chairman of the
Board in accordance with the terms of an agreement effective as of November 23,
1994 (the "Original Agreement"); and
WHEREAS, in connection with the retirement of the President and Chief
Executive Officer of Xxxxxxxx'x, Xxxxxxx was elected to serve in the additional
capacity of Chief Executive Officer and in light of additional services to be
performed by Xxxxxxx, an Amended and Restated Agreement ("the Amended and
Restated Agreement") was entered into between Xxxxxxx and Xxxxxxxx'x which
superseded the Original Agreement in all respects from and after October 4,
1996; and
WHEREAS, Xxxxxxx ceased all duties as Chief Executive Officer effective
February 7, 1997;
WHEREAS, financial circumstances made it prudent and necessary for
Xxxxxxxx'x to file for reorganization pursuant to Title 11 of the United States
Code and Xxxxxxx, at the request of the Board of Xxxxxxxx'x, shall continue to
serve as Chairman of the Board of Xxxxxxxx'x and hold other Board positions and
to devote time to Xxxxxxxx'x affairs in those capacities in 1997; and
WHEREAS, this Agreement is intended to supersede both the Original
Agreement and the Amended and Restated Agreement in all respects from and after
April 3, 1997 and all obligations pursuant to such other Agreements shall be
deemed to have been satisfied as of the Effective Date of this Agreement; and
WHEREAS, in recognition of the foregoing and the services to be performed
by Xxxxxxx during periods on and after April 3, 1997, the Board has authorized
the arrangements set forth in this Agreement subject to any approval or
modification which may be required by the United States Bankruptcy Court for the
District of Delaware where the Xxxxxxxx'x case is pending;
NOW, THEREFORE, the parties hereby agree to agree as follows:
1. Effective April 3, 1997, Xxxxxxx shall serve as (a) Chairman of the
Board of Xxxxxxxx'x; (b) a member of the Executive Committee of the Board of
Xxxxxxxx'x, and (c) a member of the Nominating Committee of Xxxxxxxx'x.
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2. For Xxxxxxx'x services in the positions listed in paragraph 1,
Xxxxxxxx'x will pay to Xxxxxxx: (a) $2,000; (b) $500 for each meeting of the
Board or each meeting of any Committee of the Board of which Xxxxxxx is a member
attended in person by Xxxxxxx; (c) $200 for any such Board or Committee meeting
attended by Xxxxxxx by telephone for each such meeting which is one (1) hour or
more in duration; and (d) reimbursement of all actual and necessary business
expenses incurred by Xxxxxxx in connection with attendance at or participation
in Board and Committee meetings including, without limitation, his reasonable
travel expenses (upon submission by Xxxxxxx of reasonable substantiation
thereof).
3. Xxxxxxx also agrees that as Chairman of the Board he will be available
to devote his time to Xxxxxxxx'x affairs for up to 40 calendar days between
April 3, 1997 and July 7, 1997, and up to 60 calendar days between July 8, 1997
and December 31, 1997 and such additional days as the Board shall deem necessary
and appropriate. For these services, Xxxxxxx shall be compensated by Xxxxxxxx'x
at the rate of $2,000 per day plus the cost of actual and necessary expenses
incurred in the performance of such duties, including, without limitation, his
reasonable travel expenses (subject to submission by him of reasonable
substantiation thereof). The foregoing days of service and payments therefor
shall be in addition to the meeting days and payments therefore provided in
paragraph 2 above.
4. Either Xxxxxxx xx Xxxxxxxx'x may terminate this Agreement at will with
or without cause, immediately effective upon written notice. Unless earlier
terminated, this Agreement shall terminate on December 31, 1997 or upon Jeld
Wen's or affiliates ("Jeld Wen") sale or other disposition of its position as
Xxxxxxxx'x lender (unless some or all of such interest is converted to equity as
party of a Plan of Xxxxxxxx'x), whichever is earlier. Upon termination of this
Agreement, Xxxxxxxx'x will pay Xxxxxxx payments due under paragraphs 2 and 3 for
services performed and expenses incurred prior to termination. Xxxxxxxx'x shall
have no further obligation to Xxxxxxx except as provided in paragraph 9 below
and as provided in the following sentence. In the event that Jeld Wen continues
its financial support of Xxxxxxxx'x at the same level as committed on April 3,
1997 (i.e. a $50 million DIP facility in addition to the pre-petition loans),
and this Agreement is terminated by Xxxxxxxx'x prior to December 31, 1997, in
addition to payments to Xxxxxxx pursuant to paragraphs 2 and 3 above for
services performed prior to termination, Xxxxxxxx'x shall pay to Xxxxxxx an
amount equal to the product of: $2,000 times 100 minus the number of days
Xxxxxxx performed services for Xxxxxxxx'x between April 3, 1997 and the date of
termination. For purposes of calculation in the preceding sentence, days Xxxxxxx
spent in Board or Committee meetings shall not be counted for purposes of the
subtraction from 100 days provided above.
5. All notices and other communications shall be in writing, either hand
delivered or mailed by first class registered mail, postage prepaid, if to
Xxxxxxx at the address set forth below under Xxxxxxx'x signature, or, if to
Xxxxxxxx'x, at 00 Xxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, attention of the
Secretary, or at such other address as either party shall designate by written
notice to the other. No notice shall be deemed to have been given until actually
received by the party to whom it is addressed; PROVIDED, that a certified or
registered mail return receipt shall be conclusive evidence of such receipt.
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6. This Agreement may not be changed, waived, discharged or terminated
orally, but only by an instrument in writing, signed by the party against which
enforcement of such change, waiver, discharge or termination is sought, or by
order of a court with jurisdiction and authority to enter such order.
7. Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other, except that
this Agreement will be binding upon and inure to the benefit of any successor or
successors of Xxxxxxxx'x whether by merger, consolidation, sale of assets or
otherwise and reference herein to Xxxxxxxx'x is intended to include any such
successor or successors.
8. Xxxxxxxx'x agrees to pay the reasonable fees and expenses of Xxxxxxx'x
counsel in connection with the negotiation of this Agreement.
9. From the effective date of this Agreement, Xxxxxxx will be entitled to
indemnification by Xxxxxxxx'x and limitation of liability for acts and omissions
in his capacity as a director of Xxxxxxxx'x or any subsidiary to the fullest
extent provided by the Restated Certificate of Incorporation and By-laws of
Xxxxxxxx'x as in effect or the effective date of this Agreement or to any
greater extent provided by any amendment to those documents.
10. This Agreement shall be governed by and construed in accordance with
the internal laws of The Commonwealth of Massachusetts. This Agreement embodies
the entire agreement of the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings, including the Original
Agreement and the Amended and Restated Agreement. If any one or more of the
provisions of this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such provision shall be in effective to
the extent, but only to the extent, of such invalidity, illegibility or
unenforceability without invalidating the remainder of such invalid, illegal or
unenforceable provision or provisions or any other provision hereof.
11. Nothing in this Agreement shall be construed to make Xxxxxxx an
employee of Xxxxxxxx'x it being understood that Xxxxxxx is an independent
contractor and is entitled to no rights as an employee of Xxxxxxxx'x.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXXXX'X INC.
By:
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Name:
Title:
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Xxxxxx X. Xxxxxxx
c/o RKS, Inc.
0000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
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