EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of February 3, 2003, by and between DARLING INTERNATIONAL INC., a Delaware corporation ("Employer" or "Company") and XXXXXXX X. XXXXXX ("Employee").
The Board of Directors of the Company is formulating a long-term strategic plan for the Company (the "Strategic Plan"). The Company and Employee agree that (1) such process may take a period of time which is difficult to fix at the present time and (2) pending the completion of such process, Employee should not relocate his residence and should not enter into a long-term employment contract. Such interim period is hereinafter referred to as the "Interim Term" and the parties intend that, unless the results of the Strategic Plan would otherwise dictate, a three year employment period (the "Term") would commence immediately following the Interim Term.
In consideration of the mutual agreements hereinafter set forth, the parties hereto agree as follows:
1. Employment as Chairman and Chief Executive Officer. Employer hereby engages Employee, and Employee hereby agrees, to serve as Employer's chairman and chief executive officer during the Employment Period (as defined below), upon the terms and subject to the conditions set forth in this Agreement. While serving as chairman and chief executive officer, Employee shall carry out such duties as are assigned by the Company's Board of Directors (the "Board"), which are consistent with Employee's position as chairman and chief executive officer, and shall have full authority to manage the business of the Company subject to the direction of the Board.
2. Director. Employer hereby agrees to appoint Employee to a vacant position on the Board and thereafter to nominate Employee for election to the Board at each annual meeting of the stockholders of the Company held during the Employment Period. Employee hereby agrees to serve as a director during the Employment Period. The Board agrees to elect Employee as Chairman of the Board immediately upon Employee's appointment to the Board. Employer now provides and agrees to use all reasonable efforts, to continue to provide, at its expense, directors and officer's liability insurance ("D and O") with limits of not less than $30 million at all times during the Employment Period, provided that if the Board determines that such "D and O" coverage cannot be obtained at reasonable cost, Employee may elect to voluntarily terminate his employment.
3. Base Salary. Employee shall receive a base salary of $400,000 per annum during the Employment Period as compensation for the services contemplated hereby, payable in accordance with the Employer's payroll policy for senior executive employees ("Base Salary"). A copy of said policy has been provided to Employee prior to execution of this Agreement. Employer's Compensation Committee will review the Base Salary annually on the anniversary of the commencement of the Employment Period and increase the Base Salary as appropriate to ensure that Employee's compensation is commensurate with compensation paid to like employees in the industry. In no event shall the Base Salary be reduced during the Employment Period.
4. Minimum Employment Period and Extended Period of Interim Term. As indicated above, Employer is unable to precisely determine how long the Interim Term will last but it shall be not less than four and not more than nine months from the date hereof. Subject to such minimum and maximum periods, the Interim Term shall last until written notice by Employer to Employee.
5. Employment Period. Unless Employer shall have notified Employee of termination of the Interim Term and that the Term shall not commence, the Term shall commence at the end of the Interim Term and shall continue for a period of three years, subject to (i) Employer's right to terminate the Term on not less than six months notice to Employee, (ii) extension for successive one-year periods after expiration of the initial three-year period of the Term or subsequent one-year extensions thereof unless terminated by not less than six months prior notice by either Employer or Employee and (iii) termination as provided in Section 15. The term "Employment Period" means all times Employee is employed by Employer, commencing on the date of this Agreement and continuing throughout the Term and any extensions thereof.
6. Severance Payments.
| (a) | If Employer terminates the Employment Period during the
Interim Term Employer shall promptly pay Employee a severance payment in an
amount equal to $75,000 plus 4/12ths of the Base Salary. The severance payment
shall be reduced by an amount equal to 1/12th of the Base Salary for every month
up to four that Employee has been paid during the Interim Term. In addition,
upon termination during the Interim Term, Employer shall pay all premiums for
continuing health and dental insurance for the earlier of (i) Employee's
coverage under the health and dental plan or insurance of his new employer, or
(ii) six months after the effective date of such termination. Upon payment of
the foregoing amounts and the payment of any other amounts due upon termination
of the Employment Period herein provided, Employer shall have no further
obligation to pay Employee any future compensation. |
| (b) | If Employer shall terminate the Employment Period during the Term (or any extension thereof), except as provided in Section 7 below, Employer shall promptly pay Employee a severance payment of $400,000, or an amount equal to one year's Base Salary if the Base Salary has been increased as herein provided, and any part of the Base Salary earned and unpaid during the Employment Period through the date of such termination, and upon such payments shall have no further obligation to pay compensation to Employee except for (1) the Bonus as provided in Section 12 below, subject to the provisions of Section 7; and (2) all premiums for continuing health and dental insurance for the earlier of (i) Employee's coverage under the health and dental plan or insurance of his new employer, or (ii) one year after the effective date of such termination. |
7. No Severance Payments. Notwithstanding the provisions of Section 6 above, if Employee voluntarily resigns or refuses to continue to perform his duties as chief executive officer or shall be discharged for Cause (as defined below), Employer shall not be obligated to pay any severance or other future compensation to Employee.
8. Exclusive Services; Employee Representations.
| (a) | During the Employment Period, Employee shall at all times
faithfully, industriously and to the best of his ability, experience and talent,
perform all of the duties of chief executive officer and shall devote all of his
business time and efforts to the performance of such duties and to the promotion
of the interests and business of the Employer; provided, however,
Employee may devote time to personal and family investments to the extent that
such investments do not conflict with the Employer's business or interfere with
the performance of Employee's duties under this Agreement. The existence of such
a conflict shall be determined in good faith by the Board. |
| (b) | Employee represents and warrants to the Employer that (i) Employee is under no contractual or other restriction or obligation which is inconsistent with the execution of this Agreement, the performance of his duties hereunder, or the other rights of the Employer hereunder and (ii) Employee is under no physical or mental disability that would hinder the performance of his duties under this Agreement. Employee agrees to conform to any standard testing program which Employer requires for all of its employees. |
9. Place of Performance. Employee shall perform his duties hereunder principally at the Company's corporate headquarters in Irving, Texas, or such other location within the Dallas/Fort Worth metropolitan area as may be designated by the Board from time to time. However, Employee shall also render services at such other place or places within or without the United States as necessary for the effective management of the Company. If Employee is required to render such services at a location away from corporate headquarters in Irving, Texas, or such other location within the Dallas/Fort Worth metropolitan area as may be designated by the Board from time to time, the Employer shall furnish such first class transportation and living expenses as may be reasonably required for Employee.
10. Relocation Expenses.
| (a) | The Employer shall reimburse Employee for the following
expenses promptly following submission of appropriate documentation thereof in
compliance with such policies and procedures relating thereto as the Company may
adopt from time to time except as modified herein: Temporary Living Expenses
(hereinafter defined) in accordance with Employer's Executive Management
Relocation Policy (a copy of which has been furnished to Employee), until 90
days after the earlier of (i) the commencement of the Term or (ii) Employee's
closing on purchase of a new home in the Dallas, Texas area. "Temporary Living
Expenses" means (i) food and housing costs at an extended stay hotel or
furnished apartment, (ii) weekly roundtrip airfare for Employee to and from his
home in Monterey, California and (iii) two round trip airfares for Employee's
wife and children to and from Monterey, California for the purpose of finding
new housing and schools. |
| (b) | Employer shall pay reasonable expenses related to the movement of Employee's household goods from Monterey, California to Employee's new residence in the Irving, Texas area in accordance with the Company's existing relocation plan ( a copy of which has been furnished to Employee), and, since Employee has elected not to sell his home in lieu of reimbursement for a relocation firm to buy Employee's home, the Company shall pay to Employee the sum of $75,000 (net after taxes) on commencement of the Term. |
11. Options.
| (a) | On the effective date (the "Effective Date")of this
Agreement (i.e. the date the Board or Compensation Committee of the Company
approves this Agreement) Employer shall grant Employee stock options (the
"Management Options") to purchase 250,000 shares of Employer's common stock (at
an option exercise price equal to 100% of the Fair Market Value of Employer's
common stock on the Effective Date pursuant to the terms of the Employer's 1994
Flexible Stock Option Plan, as amended (the "Option Plan") and of the applicable
stock option agreement under the Plan. 62,500 of such Management Options will be
exercisable immediately and 62,500 of the Management Options will become
exercisable on a cumulative basis from and after each of the first, second and
third anniversary of the commencement of the Effective Date (so that an
aggregate of 250,000 Management Options will be exercisable by the third
anniversary of the Effective Date). |
| (b) | At the commencement of the Term Employer shall grant
Employee 250,000 additional Management Options at an option exercise price equal
to 100% of the Fair Market Value of Employer's common stock on the date of
commencement of the Term, pursuant to the terms of the Option Plan and of the
stock option agreement under the Option Plan. 62,500 of such Management Options
will be exercisable immediately and 62,500 of such Management Options will be
exercisable on the first, second and third anniversary of the commencement of
the Term (so that an aggregate of 250,000 of such Management Options will be
exercisable by the third anniversary of the commencement of the
Term). |
| (c) | The Management Options shall be "incentive stock options"
to the maximum extent permitted under Section 422 of the Internal Revenue Code
of 1986, as amended. |
| (d) | If a "Change of Control"(hereinafter defined) shall
occur (i) during the Interim Term -- 62,500 of the 250,000 Management Options
referred to in subparagraph 11(a) shall be immediately exercisable or (ii)
during the Term --500,000 of the Management Options referred to in subparagraphs
11(a) and 11(b) shall be immediately exercisable. |
| (e) | "Change of Control" means the occurrence of (i) any
person or group, within the meaning of Section 13(d) of the Securities Exchange
Act of 1934 or the SEC Rules thereunder (collectively the "Control Rules"),
becoming a "beneficial owner" (as defined in the Control Rules) of more than 50%
of the total voting power of Employer's outstanding capital stock entitled to
elect directors, (ii) a majority of the members of Employer's Board of Directors
are not "Continuing Directors," (hereinafter defined)," or (iii) Employer's
consolidation with, or merger with or into any person or any person being
consolidated with, or merger with or into Employer, pursuant to a transaction in
which any of the outstanding voting capital stock of Employer is converted into
or exchanged for cash, securities or other property. |
| (f) | "Continuing Directors," means those members of Employer's Board who either (i) were members of Employer's Board on the date of commencement of the Term or (ii) were nominated or elected by a majority of the Continuing Directors who were members of Employer's Board at the time of such nomination or election. |
12. Bonus.
| (a) | During the Employment Period, Employee shall be entitled to
participate in an employee bonus plan as established from time to time by the
Board (the "Bonus Plan"), provided, however, unless Employee shall agree in
writing to a different arrangement, during the Employment Period, Employee shall
be entitled to receive a bonus (the "Bonus") based upon the relationship of
actual "EBITDA" (hereinafter defined) for a fiscal year to budgeted EBITDA as
established by the Board for such fiscal year. If actual EBITDA equals budgeted
EBITDA for a fiscal year, the bonus would be an amount equal to 60% of
Employee's then Base Salary with the bonus increasing by an amount equal to 2%
of Base Salary for each $1 million by which actual EBITDA exceeds budgeted
EBITDA for such fiscal year, provided that in no event shall the bonus for any
fiscal year exceed $400,000 (or Employee's Base Salary should the Base Salary be
increased as herein provided). |
| (b) | "EBITDA" shall mean earnings before interest, taxes,
depreciation and amortization, as determined in accordance with generally
accepted accounting principles, applied on a consistent basis. Actual EBITDA
shall be derived from the Employer's audited financial statements by its
independent certified public accountants. The Bonus will be pro-rated for the
fiscal year 2003 so that Employee will be entitled to receive that percentage
determined by dividing the number of days from commencement of the Interim Term
to the end of the fiscal year 2003 by 365 days. |
| (c) | In no event shall Employee be entitled to a bonus for any fiscal year unless Employee shall be employed on the last day of such fiscal year unless (i) Employee has been terminated without cause during the Term or (ii) it shall be determined by arbitration under Section 16 that Employer wrongfully discharged Employee. |
13. Employee Benefits.
| (a) | During the Employment Period, Employee shall be
entitled to participate in any employee benefit plans or programs that Employer
has or shall establish in the future for other senior executive employees of
Employer, in each case to the extent that Employee is eligible under the terms
of such plans or programs. |
| (b) | During the Term, Employee shall be entitled to
exclusive use of a new automobile of his choice, in the category of a sport
utility vehicle having a manufacturer's suggested retail price not to exceed
$55,000, or similar car, which vehicle shall be replaced every three (3) years
or every 60,000 miles whichever shall first occur. Said vehicle shall be
purchased or leased and maintained by the Employer solely at Employer's cost and
expense. Employer shall pay all insurance premiums for both casualty and
liability exposure for the vehicle, and shall name Employee as an additional
named insured under any policy. Employer shall pay all operational expenses,
fuel, registration and taxes in said vehicle. At the expiration or termination
of the Term, Employee shall have the option to elect to purchase said vehicle at
its depreciated book value or at its residual lease value. |
| (c) | During the Employment Period, Employee shall be
entitled to reimbursement for all ordinary and necessary business expenses
incurred by Employee in connection with the performance of his duties hereunder
subject to submission of appropriate documentation thereof in compliance with
such policies and procedures relating thereto as the Company may adopt from time
to time. |
| (d) | During the Employment Period, Employee will accrue and be entitled to use up to four weeks of vacation each year, at full pay, in accordance with the Company's vacation policy. |
14. Certain Covenants.
| (a) | Non-Competition Agreement.
During the Employment Period, and for a period of
one year thereafter (the "Restricted Period"), Employee shall not have any
ownership interest (of record or beneficial) in, or have any interest as an
employee, salesman, consultant, officer or director in, or otherwise aid or
assist in any manner, any firm, corporation, partnership, proprietorship or
other business that engages in any city, state, or part thereof in the United
States, Canada and/or Mexico (the "Restricted Territory") in a business which is
similar to that in which the Employer is engaged in the Restricted Territory or
part thereof or continues to solicit customers or potential customers therein;
provided, however, that Employee may own, directly or indirectly, solely as an
investment, securities of any entity if Employee (i) is not a controlling person
of, or a member of a group which controls, such entity and (ii) does not,
directly or indirectly, own one percent (1%) or more of any class of securities
of any such entity. |
| (b) | Non-Competition Agreement.
During the Employment Period, and for a period of one year thereafter (the
"Restricted Period"), Employee shall not have any ownership interest (of record
or beneficial) in, or have any interest as an employee, salesman, consultant,
officer or director in, or otherwise aid or assist in any manner, any firm,
corporation, partnership, proprietorship or other business that engages in any
city, state, or part thereof in the United States, Canada and/or Mexico (the
"Restricted Territory") in a business which is similar to that in which the
Employer is engaged in the Restricted Territory or part thereof or continues to
solicit customers or potential customers therein; provided, however, that
Employee may own, directly or indirectly, solely as an investment, securities of
any entity if Employee (i) is not a controlling person of, or a member of a
group which controls, such entity and (ii) does not, directly or indirectly, own
one percent (1%) or more of any class of securities of any such entity. Upon the termination of the Employment Period for any reason, Employee shall promptly deliver to the Company all correspondence, drawings, blueprints, manuals, letters, notes, notebooks, reports, flow-charts, programs, proposals, price lists, customer lists, company credit cards, company vehicles and any documents concerning the Company's or its affiliates' customers or concerning products or processes used by the Company or its affiliates and, without limiting the foregoing, will promptly deliver to the Company any and all other documents or materials containing or constituting Confidential Information. |
| (c) | Solicitation of Business.
During the Restricted Period, Employee shall not solicit or assist any other
person to solicit any business (other than for the Employer) from any present or
past customer of the Employer or request or advise any present or future
customer of the Employer to withdraw, curtail or cancel its business dealings
with the Employer; or commit any other act or assist others to commit any other
act which might injure the business of the Employer. |
| (d) | Solicitation of Employees.
During the Restricted Period, Employee shall not directly or indirectly, hire,
solicit or encourage to leave the employment of the Employer or any of its
affiliates, any employee of the Employer or any of its affiliates or hire any
such employee who has left the employment of the Employer or any of its
affiliates within one year of the termination of such employee's employment with
the Employer or any of its affiliates. |
| (e) | Solicitation of Consultants.
During the Restricted Period, Employee shall not
directly or indirectly, hire, solicit or encourage to cease work with the
Employer or any of its affiliates any consultant then under the oral or written
contract with the Employer or any of its affiliates within one year of the
termination of such Employee's employment with the Employer or any of its
affiliates. |
| (f) | Right and Remedies Upon
Breach. If Employee breaches or threatens to commit
a breach of any of the provisions of this Section 14 (the "Restrictive
Covenants"), the Employer shall have the following rights and remedies, each of
which rights and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not lieu of, any other rights and remedies available to the Employer under law
or in equity: (i) Specific Performance. The right and remedy to have the Restrictive Covenants specifically enforced by any court having equity jurisdiction, all without the need to post a bond or any other security or to prove any amount of actual damage or that money damages would not provide an adequate remedy, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Employer and that money damages will not provide adequate remedy to the Employer; and (ii) Accounting and Indemnification. The right and remedy to require Employee (i) to account for and pay over to the Employer all compensation, profits, monies, accruals, increments or other benefits derived or received by Employee or any associated party deriving such benefits as a result of any such breach of the Restrictive Covenants; and (ii) to indemnify the Employer against any other losses, damages (including special and consequential damages), costs and expenses, including actual attorneys' fees and court costs, which may be incurred by them and which result from or arise out of any such breach or threatened breach of the Restrictive Covenants. |
| (g) | Severability of Covenants/Blue
Pencilling. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions. If any court
determines that any of the Restrictive Covenants, or any part thereof, are
unenforceable because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the duration or area of such
provision and, in its reduced form, such provision shall then be enforceable and
shall be enforced. Employee hereby waives any and all right to attack and
validity of the Restrictive Covenants on the ground of the breadth of their
geographic scope or the length of their term. |
| (h) | Enforceability in
Jurisdictions. The Employer and Employee intend to
and do hereby confer jurisdiction to enforce the Restrictive Covenants upon the
courts of any jurisdiction within the geographical scope of such covenants. If
the courts of any one or more of such jurisdictions hold the Restrictive
Covenants wholly unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of the Employer and Employee that such
determination not bar or in any way affect the right of the Employer to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of such covenants, as to breaches of such covenants in such
other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants. |
| (i) | Inventions, etc. To the fullest extent permitted by law, Employee shall assign, and does hereby assign, to the Employer all of Employee's right, title and interest in and to all inventions, improvements, developments, trade secrets, discoveries, computer software, trade names and trademarks conceived, improved, developed, discovered or written by Employee, alone or in collaboration with others, during the Employment Period, Employee shall promptly and fully disclose to the Employer all matters within the scope of this paragraph, and shall, upon request of the Employer, execute, acknowledge, deliver and file any and all documents necessary or useful to vest in the Employer all of Employee's right, title and interest in and to all such matters. All expenses incurred in connection with the execution, acknowledgement, delivery and filing of any papers or documents within the scope of this paragraph shall be borne by the Employer. All matters within the scope of this paragraph shall constitute trade secrets and Confidential Information of the Employer until such matters cease to be trade secrets by operation of law. |
15. Termination.
| (a) | Death or Total Disability of Employee.
If Employee dies or becomes totally disabled during
the Employment Period, the Employment Period shall automatically terminate. For
these purposes Employee shall be deemed totally disabled if Employee shall
become physically or mentally incapacitated or disabled or otherwise unable
fully to discharge Employee's duties hereunder for a period of ninety (90)
consecutive calendar days or for 120 calendar days in any 180 calendar-day
period ("Disability"). A determination of Disability shall be made by a
physician satisfactory to both Employee and the Company; provided,
however, that if Employee and the Company do not agree on a physician,
Employee and the Company shall each select a physician and these two together
shall select a third physician, and the determination by a majority of the three
physicians as to Disability shall be binding on all parties. |
| (b) | Termination for Cause. The
Employment Period may be terminated by the Employer for the following
occurrences ("Cause"): (i) Employee's breach of any of the covenants contained in Sections 13 and 14 of this Agreement; (ii) Employee's conviction by, or entry of a plea of guilty or nole contendere in, a court of competent and final jurisdiction for any crime (whether felony or misdemeanor) involving moral turpitude or punishable by imprisonment in the jurisdiction involved; (iii) Employee's commission of any crime, act of fraud, embezzlement or theft upon or against (x) the Employer in connection with his duties with the Company or in the course of his employment with the Company or otherwise, or (y) any third party whether prior to our subsequent to the date hereof; (iv) Employee's continuing repeated failure or refusal to perform Employee's duties as required by this Employment Agreement (including, without limitation, Employee's inability to perform Employee's duties hereunder as a result of chronic alcoholism or drug addiction and/or as a result of any failure to comply with any laws, rules or regulations of any governmental entity with respect to Employee's employment by the Employer), provided that termination of Employee's employment pursuant to this subsection (iv) shall not constitute valid termination for Cause unless Employee shall have first received written notice form the Board stating with specificity the nature of such failure or refusal and affording Employee at least fifteen (15) days to correct the act or omission complained of; or (v) Gross negligence, insubordination, material violation by Employee of any duty of loyalty to the Employer or any other material misconduct on the part of Employee, provided that termination of Employee's employment pursuant to this subsection (v) shall not constitute valid termination for Cause unless Employee shall have first received written notice from the Board stating with specificity the nature of such failure or refusal and affording Employee at least fifteen (15) days to correct the act or omission complained of. |
| (c) | Termination Without Cause.
At any time during the Employment Period, Employer may terminate Employee's
employment without Cause by giving written notice of termination subject to (i)
the severance payments herein provided, (ii) payment of Base Salary for a
minimum of four months, if the termination occurs during the Interim Period, and
(iii) the payment of the other amounts payable under this Agreement upon
termination of the Employment Period, including a bonus as provided in Section
12(c). |
| (d) | Effects of a Termination for Cause or
Resignation. If Employee is discharged for Cause
pursuant to Section 15(b), Employee shall be entitled to receive his Base Salary
to the effective date of the notice of termination, provided, however, (i) if
Employee shall dispute the Board's termination for Cause, pending resolution of
such dispute by arbitration in accordance with Section 16 hereof, Employer shall
continue to pay Employee his Base Salary, subject to Employee's agreement to
repay such Base Salary payments (the "Repayment Obligation") in the event the
results of such arbitration shall justify the Board's determination, and (2)
pending final disposition of any such criminal or civil proceeding against
Employee, Employer, may suspend Employee but shall continue to pay his Base
Salary, subject to the Repayment Obligation. |
| (e) | Effects of Termination for Death or Disability. Upon the occurrence of Employee's death during the Employment Period, Employee's designated beneficiary shall be entitled to receive $350,000 from a group life insurance policy maintained by the Company at its sole expense. Upon Employee's disability during the Employment Period, Employee or his legal representatives shall be entitled to receive $10,000 per month until age 65 under a group disability policy maintained by the Company at its expense. |
16. Arbitration.
| (a) | Any dispute arising under or with respect to this Agreement
shall be resolved by Arbitration in accordance with the Rules of the American
Arbitration Association ("AAA") in Dallas, Texas. Employer shall appoint one
arbitrator and Employee shall appoint one arbitrator and such arbitrators shall
appoint a third arbitrator who shall act as chairman of the arbitration panel,
provided that (i) if the party commencing the arbitration shall fail to appoint
an arbitrator upon such commencement, (ii) if the responding party shall fail to
appoint an arbitrator within 30 days of receipt of notice of commencement of the
arbitration or (iii) the arbitrators selected by the parties shall fail to
appoint such third arbitrator within 30 days after selection of such two
arbitrators, the AAA shall appoint such arbitrator or arbitrators. |
| (b) | The decision of a majority of the arbitrators shall be
final and binding upon the parties hereto or any person claiming any interest
through one of the parties. The arbitrators may award costs, including
reasonable counsel fees and expenses, to the benefit of the prevailing party as
determined in their sole discretion. The fees of the arbitrators shall be shared
equally by the parties. |
| (c) | Nothing contained in these arbitration proceeding shall limit the relief available to Employer under Sections 13 or 14, including commencement by Employer of an action in any court of competent jurisdiction. |
17. Return of the Employer's Property. If this Agreement is terminated for any reason, the Employer shall have the right, at its option, to require Employee to vacate his offices prior to the effective date of termination and to cease all activities on the Employer's behalf. Upon the termination of his employment in any manner, Employee shall immediately surrender to the Employer all lists, books and records of, or in connection with, the Employer's business, and all other property belonging to the Employer, it being distinctly understood that all such lists, books and records, and other documents, are the property of the Employer.
18. Withholding. The Company shall be entitled to withhold from any payments or deemed payments any amount of federal and state income, FICA and other withholding tax it determines to be required by law.
19. Miscellaneous.
| (a) | Entire Agreement; Modification.
This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof, supersedes all prior
oral or written understandings between them concerning such subject matter. This
Agreement may be modified only by a written instrument duly executed by each
party. |
| (b) | Survival. Notwithstanding
the termination of this Agreement or Employee's employment hereunder, Section 6,
7, and 10 through 19 hereof shall survive any such termination. |
| (c) | Waiver. The failure of
either party hereto at any time to enforce performance by the other party of any
provision of this Agreement shall in no way affect such party's rights
thereafter to enforce the same, nor shall the waiver by either party of any
breach of any provisions hereof be deemed to be a waiver by such party of any
other breach of the same or any other provision hereof. |
| (d) | Notices. All notices and
other communications required or permitted under this Agreement shall be in
writing, served personally on, e-mailed or mailed by certified or registered
United States mail to, the party to be charged with receipt thereof. Notices and
other communications served by mail shall be deemed given hereunder 72 hours
after deposit of such notice or communication in the United States Post Office
as certified or registered mail with postage pre-paid and duly addressed to whom
such notice or communication is to be given, in the case of: |
| (i) | the Employer: |
| Darling International Inc. 000 X'Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 E-mail: Xxxxx@xxxxxxxxx.xxx Attention: Chief Financial Officer or |
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| (ii) | Employee: |
| Xxxxxxx X. Xxxxxx 00000 Xxxxxx Xxxx Xxxxxxxx, XX 00000 E-mail: xxxxxxxx@xxx.xxx |
|
| copy to: | Employee: |
| Xxxxxxx Xxxxxxx, Esq. Noland, Hamerly, Etienne and Hoss X.X. Xxx 0000 Xxxxxxx, XX 00000 E-mail: Xxxxxxxx@XXXX.xxx |
|
| Any such party may change said party’s address for purposes of this Section by giving to the party
intended to be bound thereby, in the manner provided herein, a written notice of
such change. |
| (e) | Severability. If any term or
provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be held invalid or unenforceable by a court
of competent jurisdiction, the remainder of this Agreement or the application of
any such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. If any of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
scope, activity or subject, it shall be construed by limiting and reducing it,
so as to be valid and enforceable to the extent compatible with the applicable
law or the determination by a court of competent jurisdiction. |
| (f) | Governing Law. This Agreement
shall be governed by, and interpreted in accordance with, the internal laws of
the State of Texas, without regard to the conflict of law principles thereof.
Subject to the arbitration provisions of this Agreement, Employee hereto hereby
irrevocably and unconditionally consents to submit to the jurisdiction of the
courts of the State of Texas or of the United States of America located in the
State of Texas for any actions, suits or proceedings arising out of or relating
to this Agreement and the transactions contemplated hereby, and further agrees
that service of any process, summons, notice or document by United States
registered or certified mail in accordance with Section 19(d) of this Agreement
shall be effective service of process for any action, suit or proceeding brought
in any such court. Subject to the arbitration provisions of this Agreement,
Employee hereby irrevocable and unconditionally waives any objection of personal
jurisdiction and the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby, in the courts of
the State of Texas or of the United States of America located in the State of
Texas, and hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. A claim or
a series of related claims with respect to which injunctive relief is sought may
be heard in the jurisdiction where it is alleged that the primary activity which
is the subject of such claim(s) occurred. |
| (g) | Non-transferability of Interest; Assignment by
Employer. None of the rights of Employee to receive
any form of compensation payable pursuant to this Agreement shall be assignable
or transferable except through a testamentary disposition or by the laws of
descent and distribution upon the death of Employee. Any attempted assignment,
transfer, conveyance, or other disposition (other than as aforesaid) of any
interest in the rights of Employee to receive any form of compensation to be
made by the Employer pursuant to this Agreement shall be null and void. In the
event of any sale, transfer or other disposition of all or substantially all of
the Company's assets or business, whether by merger, consolidation or otherwise
to any entity or person, this Agreement and the rights and obligations of the
Company hereunder shall be transferred to such entity or person. This Agreement
shall be binding upon and inure to the benefit of the parties, and their legal
representatives, heirs, and, subject to the preceding sentences of this Section
19(g), their successors and assigns. |
| (h) | Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement. |
| (i) | Headings. he headings
preceding the text of the sections and subsections hereof are inserted solely
for convenience of reference, and shall not constitute a part of this Agreement,
nor shall they affect its meaning, construction or effect. |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed s as of the date hereinabove
set forth.
| "EMPLOYER or COMPANY" DARLING INTERNATIONAL INC. | ||
| By: /s/ Xxxx X. Xxxx | ||
| Xxxx Xxxx, Executive Vice President | ||
| "EMPLOYEE" | ||
| /s/ Xxxxxxx X. Xxxxxx | ||
| Xxxxxxx X. Xxxxxx |
