SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.24
SECOND
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Second Amended and Restated Employment Agreement
(“Agreement”) is entered into as of July 22,
2010, but effective as of October 5, 2009 (“Effective
Date”) by and between The Xxxx Group Inc., a Louisiana
corporation (collectively with the affiliates and subsidiaries
hereinafter referred to as “Company”), and Xxxx
Xxxxxxxx (“Employee”). The Company and Employee shall
hereinafter be referred to collectively as the
“Parties”.
WHEREAS, the Company and Employee are parties to an
Employment Agreement dated October 5, 2009 (the
“Original Agreement”) and an Amended and Restated
Employment Agreement dated December 17, 2009 (the
“Amended Agreement”);
WHEREAS, the Company and the Employee desire to amend
both the Original Agreement and the Amended Agreement, and
restate the Original Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and
for other valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties agree as follows:
1. Employment. The Company hereby
employs Employee, and Employee hereby accepts employment with
the Company, on the terms and conditions set forth in this
Agreement.
2. Term of Employment. Subject to
the provisions for earlier termination provided in this
Agreement, the term of this agreement (the “Term”)
shall be three (3) years commencing on the Effective Date
hereof and shall be automatically renewed on each day following
the Effective Date hereof so that on any given day the unexpired
portion of the Term of this Agreement shall be three
(3) years. Notwithstanding the foregoing provision, at any
time after the Effective Date hereof the Company or Employee may
give written notice to the other party that the Term of this
Agreement shall not be further renewed from and after a
subsequent date specified in such notice (the “fixed term
date”), in which event the Term of this Agreement shall
become fixed and this Agreement shall terminate on the second
anniversary of the fixed term date.
3. Employee’s Duties. During
the Term of this Agreement, Employee shall serve as the
Corporate Secretary for the Company, and hold the
title Executive Vice President, General Counsel and
Corporate Secretary, with such duties and responsibilities as
may from time to time be assigned to him by the board of
directors of the Company (the “Board”) or the Chief
Executive Officer, as the case may be, provided that such duties
are consistent with the customary duties of such position.
Employee agrees to devote his full attention and time during
normal business hours to the business and affairs of the Company
and to use reasonable best efforts to perform faithfully and
efficiently his duties and responsibilities. Employee shall not,
either directly or indirectly, enter into any business or
employment with or for any person, firm, association or
corporation other than the Company during the Term of this
Agreement; provided, however, that Employee shall not be
prohibited from making financial investments in any other
company or business or from serving on the board of directors of
any other company. Employee shall at all times observe and
comply with all lawful directions and instructions of the Board.
4. Compensation.
(a) Base Compensation. For
services rendered by Employee under this Agreement, the Company
shall pay to Employee a base salary (“Base
Compensation”) of $575,000 per annum payable in accordance
with the Company’s customary pay periods and subject to
customary withholdings. The amount of Base Compensation may be
reviewed by the Board on an annual basis as of the close of each
fiscal year of the Company and may be increased as the Board may
deem appropriate. In the event the Board deems it appropriate to
increase Employee’s annual base salary, said increased
amount shall thereafter be the “Base Compensation”.
Employee’s Base Compensation, as increased from time to
time, may not thereafter be decreased unless agreed to by
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Exhibit 10.24
Employee. Nothing contained herein shall prevent the Board from
paying additional compensation to Employee in the form of
bonuses or otherwise during the Term of this Agreement.
(b) Annual Bonus. During the Term,
Employee will be eligible to participate in the Company’s
discretionary management incentive program as established by the
Board (as the same may be amended from time to time), with an
annual performance bonus range of 0-200% of Employee’s
bonus target (the “Bonus Target”), which Bonus Target
shall initially be an amount equal to 75% of Employee’s
Base Compensation earned during the plan year. The Bonus Target
may be adjusted annually as the Board may deem appropriate based
upon competitive peer company analysis. Annual bonus payments
will be subject to tax and other customary withholdings.
(c) Long Term Incentive Awards.
(i) During the Term, Employee will be eligible to
participate in the Company’s discretionary Long Term
Incentive (defined below) plan(s) as established by the Board
(as the same may be amended from time to time), subject to the
terms and conditions of the applicable plan(s). The target value
of the annual Long Term Incentive grants to Employee is 150% of
Employee’s Base Compensation on the date of grant, though
the actual amount, if any, remains in the discretion of the
Board.
(ii) As soon as administratively possible after
Employee’s first day of employment, Employee will be
granted Long Term Incentives with an aggregate value of $862,500
which will be divided equally between stock options and
restricted stock units. The actual number of Long Term
Incentives will be determined utilizing the closing price of the
Company’s stock on the date of grant. This grant of Long
Term Incentives will vest in annual installments of 25% each,
with full vesting after four years.
(iii) All Long Term Incentive awards are subject to
shareholders’ approval of shares to be allocated to the
Company’s Long Term Incentive plan(s) and are granted under
the strict purview of the Compensation Committee of the Board.
(iv) The actual number of Long Term Incentives will be
determined utilizing the valuation methodology used for other
similarly situated executive officers of the Company.
(v) Notwithstanding any provision to the contrary in the
plan(s) governing such Long Term Incentives, in the event that
this Agreement is terminated by Employee pursuant to
Section 7(a)(iv) or (v) or by the Company pursuant to
Section 7(a)(iii)(A) (other than for Misconduct) or
(iii)(D), Employee shall have not less than one year from the
Date of Termination in which to exercise all Long Term
Incentives granted to Employee by the Company on or before the
Date of Termination (including any Long Term Incentives that
become vested pursuant to Section 7); provided that in no
event shall such one year period extend the exercise period for
any Long Term Incentive awards beyond the date that is
10 years from the date of grant of such Long Term Incentive
awards.
5. Additional Benefits. In
addition to the Base Compensation provided for in Section 4
herein, Employee shall be entitled to the following:
(a) Expenses. The Company shall,
in accordance with any rules and policies that it may establish
from time to time for executive officers, reimburse Employee for
business expenses reasonably incurred in the performance of his
duties.
(b) Bonus. The Company shall pay
Employee a cash sign-on bonus in the amount of $400,000, to be
paid as soon as administratively possible after Employee’s
start date. The sign-on bonus is considered taxable income, and
all regular payroll taxes will be withheld. If, within
12 months of the Employee’s start date,
(i) Employee fails to relocate to Louisiana, or
(ii) this Agreement is terminated by Employee pursuant to
Section 7(a)(i) or by Company pursuant to 7(a)(iii)(C), the
Company has the right to require Employee to pay back this bonus
in full.
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Exhibit 10.24
(c) Vacation. Employee shall be
entitled to four (4) weeks of vacation per year. Employee
shall be entitled to carry forward any unused vacation time.
(d) General Benefits. Employee
shall be entitled to participate in the various employee benefit
plans or programs provided to the employees of the company in
general, including but not limited to, health, dental,
disability, 401K and life insurance plans, subject to the
eligibility requirements with respect to each of such benefit
plans or programs, and such other benefits or perquisites as may
be approved by the Board during the Term of this Agreement.
Nothing in this paragraph shall be deemed to prohibit the
Company from making any changes in any of the plans, programs or
benefits described in this Section 5, provided the change
similarly affects all executive officers of the Company
similarly situated.
(e) Flexible Perquisites; Use of Corporate
Aircraft. Employee shall be entitled to
participate in the Company’s flexible perquisites plan,
which provides an amount equal to 4% of Employee’s Base
Compensation in each calendar year in lieu of customary
perquisite benefits. Payments under the flexible perquisites
plan will be made on a calendar quarter basis and will be
calculated based on Employee’s Base Compensation from the
previous calendar quarter. Employee shall be permitted to use
the Company’s corporate aircraft for personal use subject
to availability and approval of the CEO in accordance with the
Company’s aircraft policy. Nothing in this
Section 5(e) shall be deemed to prohibit the Company from
making any changes in the flexible perquisites plan, provided
the change similarly affects all executive officers of the
Company that are similarly situated.
(f) Point of Origin; Relocation Expenses.
(i) Employee’s point of origin (the “Point of
Origin”) will be Bloomfield Hills, Michigan, and
Employee’s business assignment location will be the
Corporate Offices in Baton Rouge, Louisiana (the “Business
Location”).
(ii) The Company will provide relocation assistance to
Employee in connection with Employee’s permanent relocation
from the Point of Origin to the Business Location in accordance
with the domestic relocation policies of the Company at the time
such relocation occurs. Employee acknowledges that such
relocation assistance does not include the purchase by the
Company of Employee’s residence at the Point of Origin.
From the date hereof until the earliest to occur of (A) one
year from the date hereof, (B) the date of permanent
relocation of Employee to the Business Location or (C) the
Date of Termination, employee will also have access to the
Company’s aircraft on an as-available basis for travel
between the Business Location and the Point of Origin, as well
as other reasonable travel necessitated by Employee’s
relocation. Notwithstanding anything in this Agreement to the
contrary, to the extent that any amount received by Employee
under this Section 5(f)(ii) is determined by the Company or
the Internal Revenue Service to constitute taxable income to
Employee, the Company shall fully “gross up” such
amount so that Employee is in the same “net” after tax
position he would have been if such payment and gross up
payments had not constituted taxable income to Employee.
(g) Country Club Membership. The
Company will reimburse Employee for one country club membership
initiation fee. Employee shall be responsible for monthly dues,
expenses, assessments, etc., in connection with such membership.
6. Confidentiality; Nonsolicitation and
Noncompete.
(a) Employee hereby acknowledges that the Company possesses
certain Confidential Information (defined below) that is
peculiar to the businesses in which the Company is or may be
engaged. Employee hereby affirms that such Confidential
Information is the exclusive property of the Company and that
the Company has proprietary interests in such Confidential
Information. For the purposes of this Agreement, the term
“Confidential Information” shall mean any and all
information of any nature and in any form that at the time or
times concerned is not generally known to Persons (other than
the Company) that are engaged in businesses similar to that
conducted or contemplated by the Company (other than by the act
or acts of an employee not authorized by the Company to disclose
such information), which may include, without limitation, the
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Exhibit 10.24
Company’s existing and contemplated products and services;
the Company’s purchasing, accounting, marketing and
merchandising methods or practices; the Company’s
development data, theories of application
and/or
methodologies; the Company’s customer/client contact
and/or
supplier information files; the Company’s existing and
contemplated policies
and/or
business strategies; any and all samples
and/or
materials submitted to Employee by the Company; and any and all
directly and indirectly related records, documents,
specifications, data and other information with respect thereto.
Employee further acknowledges by signing this Agreement that the
Company has expended much time, cost and difficulty in
developing and maintaining the Company’s customers.
(b) Employee shall (i) use the Confidential
Information solely for the purpose of performing Employee’s
duties on behalf of the Company and for no other purpose
whatsoever, (ii) not, directly or indirectly, at any time
during or after Employee’s employment by the Company,
disclose Confidential Information to any other Person (except to
the Company’s officers in connection with Employee’s
duties on behalf of the Company) or use or otherwise exploit
Confidential Information to the detriment of the Company, and
(iii) not lecture on or publish articles with respect to
Confidential Information without prior written approval of the
Cheif Operating Officer of the Company. In the event of a breach
or threatened breach of the provisions of this
Section 6(b), the Company shall be entitled, in addition to
any other remedies available to the Company, to an injunction
restraining Employee from disclosing such Confidential
Information.
(c) Upon termination of employment of Employee for whatever
reason, Employee shall surrender to the Company any and all
documents, manuals, correspondence, reports, records and similar
items then or thereafter coming into the possession of Employee
that contain any Confidential Information; provided, however,
that (i) the Company will provide Employee reasonable
access to such Confidential Information to the extent required
by Employee in connection with the defense of any cause of
action, dispute, proceeding or investigation made or initiated
against Employee by any Person other than the Company related to
the employment of Employee by the Company or the performance by
Employee of its duties in the course of such employment and
(ii) Employee may retain a copy of any agreement between
Employee and the Company.
(d) Employee agrees that, as part of the consideration for
this Agreement and as an integral part hereof, Employee has
executed, delivered and agreed to be bound by the
Nonsolicitation and Noncompete Agreement attached hereto as
Exhibit A, as well as any subsequent addenda thereto.
7. Termination.
(a) This Agreement may be terminated prior to the
expiration of the Term only under the terms and conditions set
forth below:
(i) Resignation (other than for Good
Reason). Employee may resign Employee’s
position at any time, including by reason of retirement, by
providing written notice of resignation to the Company. In the
event of such resignation (except in the case of resignation for
Good Reason (defined in Section 7(a)(iv) below)), this
Agreement shall terminate on the Date of Termination (defined in
Section 7(c) below), and Employee shall not be entitled to
further compensation pursuant to this Agreement other than the
payment of any Base Compensation and General Benefits (e.g.,
unused vacation, unreimbursed business expenses, etc.) accrued
and unpaid as of the Date of Termination and the retention of
any and all stock options, restricted shares or units or other
similar awards granted to Employee by the Company under any long
term incentive plan(s) duly adopted by the Board (“Long
Term Incentives”) that have vested or become exercisable on
or before the Date of Termination in accordance with the plan(s)
governing such Long Term Incentives (which Long Term Incentives
remain subject to, and must thereafter be exercised in
accordance with, the plan(s) governing such Long Term
Incentives).
(ii) Death. If Employee’s
employment is terminated due to Employee’s death, the
Company shall pay to Employee’s surviving spouse or estate,
subject to customary withholdings, not later than 30 days
after Employee’s death, (I) any Base Compensation and
General Benefits accrued and unpaid as of the date of
Employee’s death, and (II) a lump sum amount, in cash,
equal to the cost for Employee’s
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Exhibit 10.24
surviving spouse or legal representatives to obtain one year of
paid group health and dental insurance benefits covering
Employee’s surviving spouse and dependents that are
substantially similar to those that Employee’s surviving
spouse and dependents were receiving immediately prior to
Employee’s death. After all payments and benefits under
this Section 7(a)(ii) have been paid or performed, this
Agreement shall terminate, and the Company shall have no
obligations to Employee or Employee’s surviving spouse,
dependents or estate with respect to this Agreement. This
provision shall not be exclusive and shall be in addition to
death benefits payable by the Company or any insurer under any
insurance plan or program covering Employee.
(iii) Discharge.
(A) The Company may terminate Employee’s employment
for any reason at any time upon written notice delivered to
Employee in accordance with Section 7(b).
(B) In the event that Employee’s employment is
terminated during the Term by the Company for any reason other
than Employee’s Misconduct or Disability (both as defined
below), the following shall occur:
(I) the Company shall pay to Employee, subject to tax and
other customary withholdings, not later than 15 days after
the Date of Termination, (x) any Base Compensation and
General Benefits accrued and unpaid as of the Employee’s
Date of Termination; (y) a lump sum amount, in cash, equal
to the sum of (1) the product of (a) Employee’s
Base Compensation as in effect immediately prior to the Date of
Termination, multiplied by (b) the remaining portion of the
Term, plus (2) the product of (a) an amount equal to
Employee’s highest annual bonus actually paid by the
Company during the two year period immediately preceding the
Date of Termination (which amount shall be determined by
annualizing the bonus amount and not discounting or prorating
based upon less than 12 months of service during the payout
year), or, if Termination occurs within one year of the
effective date and no such bonus has yet been paid, an amount
equal to $431,250.00, multiplied by (b) the remaining
portion of the term; and (z) a lump amount, in cash, equal
to the cost for Employee to obtain, for the period commencing on
the Date of Termination and ending on the earlier to occur of
(1) the date that is 18 months following the Date of
Termination and (2) the fixed term date (if any), life,
disability, accident, dental and health insurance benefits
(“Welfare Benefits”) covering Employee (and, as
applicable, Employee’s spouse and dependents) that are
substantially similar to those that Employee (and
Employee’s spouse and dependents) were receiving
immediately prior to the Date of Termination; and
(II) notwithstanding any provision to the contrary in the
plan(s) governing such Long Term Incentives, Employee shall
become immediately and totally vested in any and all Long Term
Incentives granted to Employee by the Company prior to the Date
of Termination.
(C) Notwithstanding anything to the contrary in this
Agreement, in the event that Employee is terminated because of
Misconduct, the Company shall have no obligations pursuant to
this Agreement after the the Date of Termination other than the
payment of any Base Compensation and General Benefits accrued
and unpaid through the the Date of Termination. As used herein,
“Misconduct” means:
(I) (A) any willful breach or habitual neglect of duty
by Employee or (B) Employee’s material and continued
failure to substantially perform Employee’s duties with the
Company (other than any such failure resulting from
Employee’s incapacity due to a Disability or any such
actual or anticipated failure after the issuance of a Notice of
Termination by Employee for Good Reason) (I) in a
professional manner and (II) in a manner that is reasonably
expected as appropriate for the position, in the case of either
(A) or (B), which breach, neglect or failure is not cured
by Employee within 30 days from receipt by Employee of
written notice from the Company that specifies the alleged
breach, neglect or failure;
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Exhibit 10.24
(II) the misappropriation or attempted misappropriation by
Employee of a material business opportunity of the Company,
including attempting to secure any personal profit in connection
with entering into any transaction on behalf of the Company;
(III) the misappropriation or attempted misappropriation by
Employee of any of the Company’s funds or property;
(IV) an intentional violation by Employee of the
Company’s Code of Corporate Conduct or Fraud Policy; or
(V) (A) the commission by Employee of a felony offense
or a misdemeanor offense involving violent or dishonest behavior
or (B) Employee engaging in conduct involving fraud or
dishonesty in connection with his duties with the Company.
(D) Disability. If Employee shall have
been absent from the full time performance of Employee’s
duties with the Company for 120 consecutive calendar days as a
result of Employee’s incapacity due to a Disability,
Employee’s employment may be terminated by the Company. For
the purposes of this Agreement, a “Disability” shall
exist if:
(I) Employee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or can
be expected to last for a continuous period of not less than
12 months; or
(II) Employee is, by reason of any medically determinable
physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not
less than 12 months, receiving income replacement benefits
for a period of not less than three months under an accident and
health plan covering employees of the Company.
If Employee is terminated pursuant to this
Section 7(a)(iii)(D), Employee shall not be entitled to
further compensation pursuant to this Agreement, except that
(x) the Company shall (1) not later than 15 days
after the Date of Termination, pay to Employee any Base
Compensation and General Benefits accrued and unpaid as of the
date of the Date of Termination, (2) for the 12 month
period beginning with the Date of Termination, pay to Employee
monthly the amount by which Employee’s monthly Base
Compensation as in effect immediately prior to the Date of
Termination exceeds the monthly benefit received by Employee
pursuant to any disability insurance covering Employee, and
(3) not later than 15 days after the Date of
Termination, pay to Employee a lump amount, in cash, equal to
the cost for Employee to obtain, for the period commencing on
the Date of Termination and ending on the earlier to occur of
(a) the date that is 18 months following the Date of
Termination and (b) the fixed term date (if any), health
and dental insurance benefits covering Employee and
Employee’s spouse and dependents that are substantially
similar to those that Employee (and Employee’s spouse and
dependents) was receiving immediately prior to the Date of
Termination; and (y) notwithstanding any provision to the
contrary in the plan(s) governing such Long Term Incentives,
Employee shall become immediately and totally vested in any and
all Long Term Incentives granted to Employee by Company prior to
the Date of Termination that have not previously vested in full.
(iv) Resignation for Good
Reason. Employee shall be entitled to
terminate Employee’s employment for Good Reason (as defined
herein). If Employee terminates employment for Good Reason,
Employee shall be entitled to the compensation and benefits
provided in Section 7(a)(iii)(B). For the purposes of this
Agreement, the term “Good Reason” shall mean the
occurrence of any of the following circumstances without
Employee’s express written consent:
(A) any material diminution of Employee’s duties or
responsibilities (other than in connection with the termination
of Employee for Misconduct or Disability in accordance with the
terms of this Agreement);
(B) any material diminution of Employee’s Base
Compensation;
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Exhibit 10.24
(C) the relocation of Employee’s office more than
50 miles from its location at the commencement of this
Agreement; or
(D) any other material breach by the Company of its
obligations under this Agreement; provided, however, Employee
shall provide written notice (a “Good Reason Notice”)
to the Company of the initial existence of the condition causing
the change in terms or status no more than 90 days after
the change in terms or status occurs, and the Company shall have
30 days from receipt of the Good Reason Notice to resolve
the issue causing the change in terms or status. If the Company
resolves such issue, then Employee’s employment shall not
be subject to the Good Reason provisions of this Agreement as to
such issue.
(v) Resignation for Corporate
Change. Employee shall be entitled to
terminate Employee’s employment for a Corporate Change (as
defined herein) if Employee is not retained in Employee’s
current (or a comparable) position, but only if Employee gives
notice of Employee’s intent to terminate employment within
90 days following the effective date of such Corporate
Change (provided that, notwithstanding the foregoing, the Notice
of Termination may not be given later than
February 13th of the year following the year in which
the Corporate Change occurs). If Employee terminates employment
for a Corporate Change, Employee shall be entitled to the
compensation and benefits provided in Section 7(a)(iii)(B). For
the purposes of this Agreement, the term “Corporate
Change” means a “change in ownership,” a
“change in effective control,” or a “change in
the ownership of substantial assets” of the Company.
(A) A “change in ownership” of the Company occurs
on the date that any one person, or more than one person acting
as a group, acquires ownership of stock of the Company that,
together with stock held by such person or group, constitutes
more than 50% of the total fair market value or total voting
power of the stock of the Company. However, if any one person,
or more than one person acting as a group, is considered to own
more than 50% percent of the total fair market value or total
voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons is not considered
to cause a change in ownership of the Company (or to cause a
change in the effective control of the Company (within the
meaning of Section 7(v)(B)).
(B) Notwithstanding that the Company has not undergone a
change in ownership under Section 7(v)(A), a “change
in effective control” of the Company occurs on the date
that a majority of members of the Board is replaced during any
12-month
period by directors whose appointment or election is not
endorsed by a majority of the members of the Board prior to the
date of the appointment or election. For purposes of this
Section 7(v)(B), the term “Company” refers solely
to the relevant corporation identified in the opening paragraph
of this Agreement, for which no other corporation is a majority
shareholder.
(C) A “change in the ownership of substantial
assets” of the Company occurs on the date that any one
person, or more than one person acting as a group, acquires (or
has acquired during the
12-month
period ending on the date of the most recent acquisition by such
person or persons) assets from the Company that have a total
gross fair market value equal to or more than 75% percent of the
total gross fair market value of all of the assets of the
Company immediately prior to such acquisition or acquisitions.
For this purpose, “gross fair market value” means the
value of the assets of the Company, or the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets.
(b) Notice of Termination. Any
purported termination of Employee’s employment by the
Company under Sections 7(a)(iii)(C) or (D), or by Employee
under Section 7(a)(i), (iv) or (v), shall be
communicated by a written Notice of Termination to the other
Party in accordance with Section 10. For purposes of this
Agreement, a “Notice of Termination” shall mean a
notice that (i) in the case of termination by the Company,
shall set forth in reasonable detail the reason for such
termination of Employee’s employment and the Date of
Termination, or (ii) in the case of resignation by
Employee, shall specify in reasonable detail the basis for
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Exhibit 10.24
such resignation and the Date of Termination. A Notice of
Termination given by Employee pursuant to Section 7(a)(iv)
shall be effective even if given after the receipt by Employee
of notice that the Board has set a meeting to consider
terminating Employee for Misconduct. A Notice of Termination
given by Employee pursuant to Section 7(a)(iv) shall be
considered effective only after 30 days have elapsed since
Employee delivered the applicable Good Reason Notice and the
Company has failed to resolve the issue causing the change in
terms or status during such 30 day period. Employee shall
not be expected to provide further services after the Date of
Termination. Any purported termination for which a Notice of
Termination is required that does not materially comply with
this Section 7(b) shall not be effective.
(c) Date of Termination, Etc. The
“Date of Termination” shall mean the date specified in
the Notice of Termination, provided that the Date of Termination
shall be at least 15 calendar days, but not more than 45
calendar days, following the date the Notice of Termination is
given. Notwithstanding anything herein to the contrary, if a
Notice of Termination is given pursuant to Section 7(a)(v),
then the Date of Termination may not be later than
February 28th of the year following the year in which
the Change of Control occurs. In the event Employee is
terminated for Misconduct, the Company may refuse to allow
Employee access to the Company’s offices (other than to
allow Employee to collect Employee’s personal belongings
under the Company’s supervision) prior to the Date of
Termination. Employee shall not be expected to provide further
services after the Date of Termination.
(d) Mitigation. Employee shall not
be required to mitigate the amount of any payment provided for
in this Section 7 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this
Agreement be reduced by any compensation earned by Employee as a
result of employment by another employer, except that any
severance amounts payable to Employee pursuant to the
Company’s severance plan or policy for employees in general
shall reduce the amount otherwise payable pursuant to
Section 7(a)(iii)(B).
(e) Excess Parachute
Payments. Notwithstanding anything in this
Agreement to the contrary, to the extent that any payment or
benefit received or to be received by Employee hereunder in
connection with the termination of Employee’s employment
would, as determined by tax counsel selected by the Company,
constitute an “Excess Parachute Payment” (as defined
in Section 280G of the Internal Revenue Code), the Company
shall fully “gross up” such payment so that Employee
is in the same “net” after tax position he would have
been if such payment and gross up payments had not constituted
Excess Parachute Payments. No payment of a gross up shall occur
until the first business day occurring after the date that is
six months after the Date of Termination. Payment of the gross
up will be made no later than the end of Employee’s taxable
year next following Employee’s taxable year in which
Employee remits the related taxes.
8. Non exclusivity of
Rights. Nothing in this Agreement shall
prevent or limit Employee’s continuing or future
participation in any benefit, bonus, incentive, or other plan or
program provided by the Company and for which Employee may
qualify, nor shall anything herein limit or otherwise adversely
affect such rights as Employee may have under any Long Term
Incentives granted by the Company.
9. Assignability. The obligations
of Employee hereunder are personal and may not be assigned or
delegated by Employee or transferred in any manner whatsoever,
nor are such obligations subject to involuntary alienation,
assignment or transfer. The Company shall have the right to
assign this Agreement and to delegate all rights, duties and
obligations hereunder, either in whole or in part, to any
parent, affiliate, successor or subsidiary of the Company, so
long as the obligations of the Company under this Agreement
remain the obligations of the Company.
10. Notice. For the purpose of
this Agreement, all notices and other communications provided
for in this Agreement shall be in writing and shall be deemed to
have been duly given when delivered by Federal Express or
similar courrier addressed (a) to the Company, at its
principal office address, directed to the attention of the Board
with a copy to the Corporate Secretary of the Company, and
(b) to Employee, at Employee’s residence address on
the records of the Company or to such other address as either
Party may have furnished to the other in writing in accordance
herewith except that notice of change of address shall be
effective only upon receipt.
8
Exhibit 10.24
11. Severability. In the event
that one or more of the provisions set forth in this Agreement
shall for any reason be held to be invalid, illegal, overly
broad or unenforceable, the same shall not affect the validity
or enforceability of any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal,
overly broad or unenforceable provisions had never been
contained therein; provided, however, that no provision shall be
severed if it is clearly apparent under the circumstances that
the Parties would not have entered into the Agreement without
such provision.
12. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business
and/or
assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain
such agreement prior to the effectiveness of any such succession
shall constitute Good Reason under Section 7(a)(iv);
provided that, for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be
deemed the Date of Termination. As used herein, the term
“Company” shall include any successor to its business
and/or
assets as aforesaid that executes and delivers the Agreement
provided for in this Section 12 or that otherwise becomes
bound by all terms and provisions of this Agreement by operation
of law.
(b) This Agreement and all rights of Employee hereunder
shall inure to the benefit of and be enforceable by
Employee’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
13. Miscellaneous.
(a) No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by Employee and such officer of
the Company as may be specifically authorized by the Board.
(b) No waiver by either Party at any time of any breach by
the other Party of, or in compliance with, any condition or
provision of this Agreement to be performed by such other Party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
(c) Together with the Nonsolicitation and Noncompete
Agreement, this Agreement is an integration of the Parties’
agreement; no agreement or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof
have been made by either Party, except those which are set forth
expressly in this Agreement and the Nonsolicitation and
Noncompete Agreement.
(d) THE VALIDITY, INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF LOUISIANA.
(e) Notwithstanding anything herein to the contrary, this
Agreement is intended to comply with Internal Revenue Code
Section 409A and the regulations and other guidance of
general applicability thereunder and shall at all times be
interpreted in accordance with such intent such that amounts
credited under this Agreement shall not be taxable until such
amounts are distributed in accordance with the terms of this
Agreement. In the event that Employee is a “specified
employee” at the Date of Termination, any amounts that are
considered nonqualified deferred compensation for purposes of
Internal Revenue Code Section 409A and that are distributable
because of a separation from service shall be delayed until the
first business day occuring after the date that is six months
after the Date of Termination. Any provision of this Agreement
to the contrary is without effect.
(f) Reimbursements provided for under this Agreement shall
be provided in accordance with policies of the Company
established from time to time.
14. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will
constitute one and the same instrument.
9
Exhibit 10.24
15. Arbitration.
(a) Employee and the Company agree that any dispute
regarding the covenants herein
and/or the
validity of this Agreement and its addenda, if any, shall be
resolved through arbitration. Employee and the Company hereby
expressly acknowledge that Employee’s position in the
Company and the Company’s business have a substantial
impact on interstate commerce and that Employee’s
development and involvement with the Company and the
Company’s business have a national and international
territorial scope commercially. Any arbitration-related matter
or arbitration proceeding of a dispute regarding the covenants
herein
and/or the
validity of this Agreement and its addenda, shall be governed,
heard, and decided under the provisions and the authority of the
Federal Arbitration Act, 9 U.S.C.A. § 1, et seq.,
and shall be submitted for arbitration to the office of the
American Arbitration Association (“AAA”) in New
Orleans, Louisiana, on demand of either Party.
(b) Such arbitration proceedings shall be conducted in New
Orleans, Louisiana, and shall be conducted in accordance with
the then-current Employment Arbitration Rules and Mediation
Procedures of the AAA, with the exception that the Employee
expressly waives the right to request interim measures or
injunctive relief from a judicial authority. Employee
acknowledges that the Company alone retains the right to seek
injunctive relief from a judicial authority based on the nature
of this Agreement. Each Party shall have the right to be
represented by counsel or other designated representatives. The
Parties shall negotiate in good faith to appoint a mutually
acceptable arbitrator; provided, however, that, in the event
that the Parties are unable to agree upon an arbitrator within
30 days after the commencement of the arbitration
proceedings, the AAA shall appoint the arbitrator. The
arbitrator shall have the right to award or include in his or
her award any relief that he or she deems proper under the
circumstances, including, without limitation, all types of
relief that could be awarded by a court of law, such as money
damages (with interest on unpaid amounts from date due),
specific performance and injunctive relief. The arbitrator
shall issue a written opinion explaining the reasons for his or
her decision and award. The award and decision of the arbitrator
shall be conclusive and binding upon both Parties, and judgment
upon the award may be entered in any court of competent
jurisdiction. The Parties acknowledge and agree that any
arbitration award may be enforced against either or both of them
in a court of competent jurisdiction, and each waives any right
to contest the validity or enforceability of such award. The
Parties further agree to be bound by the provisions of any
statute of limitations that would be otherwise applicable to the
controversy, dispute, or claim that is the subject of any
arbitration proceeding initiated hereunder. Without limiting the
foregoing, the Parties shall be entitled in any such arbitration
proceeding to the entry of an order by a court of competent
jurisdiction pursuant to a decision of the arbitrator for
specific performance of any of the requirements of this
Agreement. The provisions of this Section 15 shall survive
and continue in full force and effect subsequent to and
notwithstanding expiration or termination of this Agreement for
any reason. Employee agrees to pay arbitration fees in an amount
not to exceed the amount required to file a lawsuit in a court
of law. The Company agrees to pay the remaining amount of
arbitration fees. The arbitrator shall have the right to award
reasonable attorney’s fees and costs to the prevailing
Party. Employee and the Company acknowledge and agree that any
and all rights they may have to resolve their claims by a jury
trial are hereby expressly waived. The provisions of this
Section 15 do not preclude Employee from filing a complaint
with any federal, state, or other governmental administrative
agency, if applicable.
10
Exhibit 10.24
IN WITNESS WHEREOF, the parties have executed this
Agreement on July , 2010, effective for all
purposes as provided above.
THE XXXX GROUP INC.
/s/ Xxxx X.
Xxxxxxx
| By: | Xxxx X. Xxxxxxx, |
Executive Vice President and Chief Operating Officer
EMPLOYEE:
| Name: | /s/ Xxxx Xxxxxxxx |
Xxxx Xxxxxxxx
Executive Vice President, General Counsel and Corporate Secretary
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