EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of March 14, 2005,
is made by and between XXXXXXX, INC. (the "Company"), and Xxxxx X. Xxxxxxxx (the
"Executive").
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued service and dedication of the
Executive.
WHEREAS, the Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control;
WHEREAS, the Company has determined that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of members of
the Company's executive management, including the Executive, to their assigned
duties with the Company, without distraction in the face of potentially
disruptive circumstances arising from the possibility of a Change of Control;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Company and the Executive hereby
agree as follows:
1. Definitions.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by, or under direct or indirect common control with such
Person. For the purposes of this definition "control", when used with respect to
any specified Person, shall mean the power to direct the management and policies
of such Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled by" shall have the meanings correlative to the foregoing.
"Cause" means, when used with respect to the termination of the
employment of the Executive by the Company, termination due to (a) an act or
acts of personal dishonesty taken by the Executive and intended to result in
substantial personal enrichment of the Executive at the expense of the Company;
(b) the Executive's continued failure to substantially perform the Executive's
employment duties (other than any such failure resulting from the Executive's
incapacity due to physical or mental illness) which are demonstrably willful and
deliberate on the Executive's part and which are not remedied in a reasonable
period of time after receipt of written notice from the Company; or (c)
conviction of, or a plea of guilty or no contest by, the
Executive to a crime that constitutes a felony involving moral turpitude. No act
or failure to act on the part of the Executive shall be considered "willful"
unless it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission was in the
best interests of the Company.
"Change of Control" means:
(i) The acquisition (whether by tender offer, exchange offer or other
business combination or by the purchase of shares or other securities
(including from the Company), and whether in a single transaction or
multiple transactions), by any Person or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
50% or more of either the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or the combined voting
power of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors (the "Company Voting
Securities"), provided, however, that any acquisition by the Company or its
subsidiaries, or any employee benefit plan (or related trust) of the
Company or its subsidiaries, or any corporation with respect to which,
following such acquisition, more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of
the Persons who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Company Voting Securities immediately
prior to such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the Outstanding
Company Common Stock and Company Voting Securities, as the case may be,
shall not constitute a Change of Control and provided further, however,
that for the purposes of this Agreement the Convertible Preferred Stock
shall be considered Company Voting Securities based on the equivalent
number of shares of common stock of the Company that could be voted at that
time; or
(ii) Individuals who, as of January 1, 2005, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual becoming a director subsequent
to January 1, 2005 who is elected by the Company's shareholders or was
approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of the
directors of the Board (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act); or
(iii) The Company entering into (x) a reorganization, merger,
consolidation or other business combination, in each case, with respect to
which all or substantially all of the Persons who were the respective
beneficial owners of
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the Outstanding Company Common Stock and Company Voting Securities
immediately prior to such reorganization, merger, business combination or
consolidation do not, following such reorganization, merger, business
combination or consolidation, beneficially own, directly or indirectly,
more than 50% of, respectively, the then outstanding shares of common stock
and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may
be, of the corporation resulting from such reorganization, merger, business
combination or consolidation, or (y) a complete liquidation or dissolution
of the Company, or (z) the sale or other disposition of all or
substantially all of the assets of the Company in one transaction or series
of related transactions.
(iv) Anything in this Agreement to the contrary notwithstanding, if an
event that would, but for this paragraph, constitute a Change of Control
results from or arises out of a purchase or other acquisition of the
Company, directly or indirectly, by a Person in which the Executive has a
direct or indirect equity interest, such event shall not constitute a
Change of Control; provided, however, that the limitation contained in this
sentence shall not apply to any direct or indirect equity interest in a
Person (1) which equity interest is part of a class of equity interests
which are publicly traded on any national securities exchange or other
market system, (2) received by the Executive, without the Executive's
concurrence or consent, as a result of a purchase or other acquisition of
the Company by such corporation or other entity, or (3) received by the
Executive, without the Executive's explicit concurrence or consent, in
connection with a purchase or other acquisition of the Company by such
Person in respect of any stock options or performance awards granted to the
Executive by the Company.
"Change of Control Period" means the 36-month period following a
Change of Control; provided, that for purposes of this Agreement there can be no
more than one Change of Control Period.
"Code" means the Internal Revenue Code of 1986, as amended.
"Convertible Preferred Stock" means the Company's Series A Preferred
Stock and Series B Preferred Stock with a par value of $0.001 per share issued
and outstanding from time to time.
"Date of Termination" means the date of the Executive's death, the
Disability Effective Date, or the date on which the termination of the
Executive's employment by the Company for Cause or without Cause or by the
Executive for Good Reason or without Good Reason is effective, as the case may
be.
"Disability" means that the Executive has been unable, for the period
specified in the Company's disability plan for senior executives, but not less
than a period of 180 consecutive business days, to perform the Executive's
duties under this Agreement, as a result of physical or mental illness or
injury.
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"Disability Effective Date" has the meaning given such term in Section
5.1.
"Employment Period" means the period commencing on the date hereof and
ending on the second anniversary of such date; provided, however, that
commencing on the date that is one year after the date hereof, and on each
annual anniversary of such date (such date and each annual anniversary thereof
is hereinafter referred to as the "Renewal Date"), the Employment Period shall
be automatically extended without any action required of either party to this
Agreement so as to terminate two years from such Renewal Date, unless at least
360 days prior to the applicable Renewal Date, either party gives written notice
to the other that it wishes not to extend the Employment Period (the
"Non-Renewal Notice") in which event the Employment Period will expire two years
from the date of the Non-Renewal Notice. The expiration of the Employment Period
resulting from the delivery of a Non-Renewal Notice will not be deemed a
termination of the Executive's employment without Cause. Notwithstanding the
foregoing, unless the Employment Period has already terminated, the Employment
Period shall be automatically extended upon a Change of Control so as to
terminate three years from the date of the Change of Control.
"Fiscal Period" shall mean either (i) a full calendar year or (ii) the
period from January 1 through the Termination Date, the date of a Change of
Control or other applicable measurement date that is less than a calendar year.
"Good Reason" means the Executive's termination of the Executive's
employment during the Change of Control Period for any one or more of the
following reasons: (a) the assignment to the Executive of any duties
inconsistent with the Executive's position, authority, duties or
responsibilities as contemplated by Section 3 of this Agreement, or any other
action by the Company which results in a diminution in such position, authority,
comparable duties or responsibilities, excluding for these purposes an isolated,
insubstantial or inadvertent action not taken in bad faith and which is remedied
by the Company promptly after receipt of notice thereof given by the Executive;
(b) any failure by the Company to comply with any of the provisions of Section 4
of this Agreement (including (i) adopting a bonus plan that does not have
substantially similar terms and payments for comparable performance, and (ii)
providing Welfare Benefit Plans, Vacation and Fringe Benefits and Perquisites
that are in the aggregate less favorable to the Executive than those in effect
90 days before the Change of Control) other than an isolated, insubstantial or
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive; (c) the
Company's requiring the Executive to be based at any office or location other
than the location where the Executive was employed immediately preceding the
date of the Change of Control or any office or location more than 50 miles from
such location and in no event shall the Executive be required to travel outside
such location more often than 45 days in any calendar year; (d) any purported
termination by the Company of the Executive's employment otherwise than as
expressly permitted by this Agreement; or (e) any failure by the Company to
comply with and satisfy Section 9.3 of this Agreement.
"Highest Annual Bonus" is the greater of (a) the Annual Bonus paid or
payable to the Executive for Fiscal Period ending on the date of a Change of
Control and
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(b) the average Annual Bonus for the two preceding Fiscal Periods, each
annualized for any Fiscal Period consisting of less than twelve full months.
"Notice of Termination" shall mean either a Notice of Termination for
Cause under Section 5.2, Notice of Termination without Good Reason under Section
5.3, or a Notice of Termination for Good Reason under Section 5.4.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association or joint venture.
2. Term of Employment. Subject to the terms and provisions set forth in
this Agreement, the Company shall continue to employ the Executive, and the
Executive agrees to remain in the employ of the Company, for the Employment
Period, unless either party terminates the Executive's employment pursuant to
the terms of this Agreement.
3. Position and Duties.
3.1 Positions and Duties. During the Employment Period, the Executive
shall be employed and shall serve as a senior corporate officer with such duties
and responsibilities as are customarily assigned to a Chief Financial Officer.
3.2 Best Efforts. During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive shall devote substantially all their attention and time during normal
business hours to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the Executive under this
Agreement, use the Executive's reasonable best efforts to carry out such
responsibilities faithfully and efficiently. It shall not be considered a
violation of the foregoing for the Executive to (A) serve on corporate, civic or
charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions, and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement.
4. Compensation and Other Benefits. The Executive's compensation during
the Employment Period shall be determined by the Board upon recommendation of
the committee of the Board having responsibility for approving the compensation
of senior executives, subject to the provisions below:
4.1 Base Salary. During the Employment Period, the Executive shall
receive an annual base salary ("Base Salary") at a rate of not less than 15%
lower than $325,000. The Base Salary shall be payable in accordance with the
Company's regular payroll practices for its senior executives, as in effect from
time to time. During the Employment Period, the Executive's Base Salary will be
reviewed at least annually by the Board, and the Board may, in its sole
discretion, increase the Base Salary. Any increase in the Base Salary shall not
limit or reduce any other obligation of the Company under this Agreement. The
term "Base Salary" shall thereafter refer to the Base Salary as so increased.
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4.2 Annual Bonus. With respect to each year during the Employment
Period, the Executive shall be designated as a participant in the Company's
Management Incentive Bonus Plan or any similar bonus plan for senior executives
(the "Bonus Plan"), which provides for bonus payments to the Executive, and
subject to meeting the criteria of the Bonus Plan established by the Board in
its discretion, shall receive the bonus award provided for therein (the "Annual
Bonus"). Each such Annual Bonus shall be paid not later than the 15th day of the
third month of the Fiscal Period following the Fiscal Year for which the Annual
Bonus is awarded, unless the Executive shall elect to defer the receipt of such
Annual Bonus.
4.3 Incentive, Retirement, and Savings Plans. During the Employment
Period, the Executive shall participate in all incentive, pension, retirement,
supplemental retirement, savings, stock option, restricted stock and other stock
grant and equity compensation plans, as well as all other employee benefit plans
and programs, which are made available from time to time by the Company for the
benefit of similarly situated senior executives of the Company.
4.4 Welfare Benefit Plans. During the Employment Period, the
Executive and their spouse and other eligible dependents shall participate in,
and be covered by, all of the health and other welfare benefit plans, practices,
policies and programs that are made available from time to time by the Company
for the benefit of senior executives and/or other employees of the Company,
collectively the "Welfare Benefit Plans".
4.5 Expense Reimbursement. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses, including reasonable business travel expenses, incurred by the
Executive in performing the Executive's duties and responsibilities under this
Agreement in accordance with the policies, programs, procedures and practices of
the Company as in effect at the time the expense was incurred, as the same may
be changed from time to time.
4.6 Vacation and Fringe Benefits. During the Employment Period, the
Executive shall be entitled to vacation days each Fiscal Period at such times
which do not materially interfere with the performance of the Executive's duties
and responsibilities under this Agreement in accordance with the vacation policy
of the Company. In addition, during the Employment Period, the Executive shall
be eligible to benefit from such fringe benefits, in accordance with the
policies, programs, procedures and practices of the Company, as may be in effect
and provided from time to time to senior executives and/or other employees of
the Company, collectively the foregoing are referred to as "Vacation and Fringe
Benefits"
4.7 Perquisites. During the Employment Period the Company will also
(a) pay 9.5% of the Executive's Base Salary for life insurance premiums (b)
provide a car for the Executive's use and (c)pay for the Executive to have an
annual physical examination, all of the above in accordance with the Company's
current policy, collectively the foregoing are referred to as "Perquisites".
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5. Termination of Employment.
5.1 Death or Disability. The Executive's employment, and the
Employment Period, shall terminate automatically upon the Executive's death. The
Company shall be entitled to terminate the Executive's employment because of the
Executive's Disability during the Employment Period. A termination of the
Executive's employment by the Company for Disability shall be communicated to
the Executive by written notice, and shall be effective on the 30th day after
receipt of such notice by the Executive ("Disability Effective Date") at which
time the Employment Period shall end, unless the Executive returns to full-time
performance of the Executive's duties before the Disability Effective Date.
5.2 Termination by the Company. The Company may terminate the
Executive's employment hereunder for Cause or without Cause at any time during
the Employment Period at which time the Employment Period shall end. The Company
shall give the Executive written notice of its intention to terminate the
Executive's employment and the effective date of Executive's termination of
employment, and for terminations for Cause the notice shall set forth in
reasonable detail the specific conduct of the Executive that it considers to
constitute Cause and the specific provisions of this Agreement on which it
relies (the "Notice of Termination for Cause").
5.3 Termination by Executive. The Executive may terminate their
employment hereunder without the Company's approval at any time during the
Employment Period without Good Reason upon not less than 60 nor more than 90
days advance written notice to the Company stating the date on which the
Employment Period shall end (the "Notice of Termination without Good Reason"). A
termination of the Executive's employment by the Executive without Good Reason
shall be effected by giving the Company written notice of the termination and
setting forth the date of such termination. Notwithstanding the foregoing, the
Company may elect to have any such termination become effective immediately or
at such other date, not later than the date specified in the Notice of
Termination without Good Reason, as the Company may determine, however it will
continue the Executive's Base Salary, Welfare Benefit Plans, Vacation and Fringe
Benefits, and Perquisites through the date specified by the Executive for their
termination in such Notice unless the Company terminates the Executive's
employment pursuant to this Agreement prior to such date.
5.4 Termination by Executive for Good Reason. During the Change of
Control Period, the Executive may terminate their employment hereunder for Good
Reason by giving the Company written notice ("Notice of Termination for Good
Reason") of the termination, setting forth in reasonable detail the specific
conduct of the Company that constitutes Good Reason and the specific
provision(s) of this Agreement on which the Executive relies. The failure by the
Executive to set forth in the Notice of Termination for Good Reason any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of the Executive hereunder or preclude the Executive from asserting such
fact or circumstance in enforcing the Executive's rights hereunder.
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6. Obligations of the Company upon Termination of Employment.
6.1 Termination upon Death or Disability. If an Executive's
employment is terminated by death or the Company terminates the Executive's
employment for Disability the Company shall:
(a) pay to the Executive (or in the event of termination of employment
by reason of the Executive's death, the Executive's legal representative or the
Executive's estate if no representative has been appointed) in a lump sum in
cash, within 30 days after the Date of Termination, or as otherwise provided in
this Section 6.1, any portion of the Executive's Base Salary through the Date of
Termination that has not been paid plus any unpaid Annual Bonus, deferred
compensation or other payments due the Executive,
(b) pay to the Executive a prorata portion of any bonus the Executive
would have earned in that year (based on the days covered by the Agreement in
that year divided by the number of days in the year) as if he had been employed
for the full year, payable at the same time other executive bonuses are paid for
that year, and
(c) make available to the Executive (or the Executive's eligible
dependents) any rights to continued health and welfare benefits provided by law
(i.e., COBRA) or payable to the Executive under the terms of such plans and
programs in effect immediately prior to the Executive's death or Disability.
Anything in this Agreement to the contrary notwithstanding, if the
Executive's death or Disability occurs after the Change of Control Period, the
Executive or Executive's family shall be entitled to receive benefits at least
equal to the most favorable benefits provided by the Company and any of its
Affiliates to disabled executives or the surviving families of peer executives
of the Company and such Affiliates under such plans, programs, practices and
policies relating to family disability or death benefits, if any, as in effect
with respect to other peer executives and their families at any time during the
90-day period immediately preceding the Change of Control or, if more favorable
to the Executive and/or the Executive's family, as in effect on the date of the
Executive's death or disability with respect to other peer executives of the
Company and its Affiliates and their families.
6.2 Termination by the Executive other than for Good Reason. If the
Executive voluntarily terminates employment during the Employment Period, other
than during the Change of Control Period for Good Reason, the Company shall pay
to the Executive any portion of the Executive's Base Salary through the Date of
Termination that has not been paid, plus any other amounts due the Executive
under this Agreement within 30 days and the Executive shall have any rights to
continued health and welfare benefits provided by law (i.e., COBRA) or payable
to the Executive under the terms of such plans and programs in effect
immediately prior to the Date of Termination. If the Executive voluntarily
terminates employment during the Employment Period, other than during the Change
of Control Period for Good Reason, then the Executive shall not be entitled to
any Annual Bonus for the Fiscal Period that includes the Executive's Date of
Termination.
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6.3 Termination by the Company for Cause. If the Executive's
employment is terminated by the Company for Cause during the Employment Period,
the Company shall pay to the Executive any portion of the Executive's Base
Salary through the Date of Termination that has not been paid, plus any other
amounts due the Executive under this Agreement within 30 days and the Executive
shall have any rights to continued health and welfare benefits provided by law
(i.e., COBRA)or payable to the Executive under the terms of such plans and
programs as in effect immediately prior to the Notice of Termination. If the
Executive is terminated for Cause during the Employment Period, then the
Executive shall not be entitled to any Annual Bonus for the Fiscal Period that
includes the date of the Notice of Termination for Cause.
6.4 Termination by the Company other than for Cause. If the
Executive's employment is terminated by the Company other than for Cause or due
to death or Disability during the Employment Period and not during a Change of
Control Period, the Company shall:
(a) pay to the Executive, in a lump sum within thirty days after the
Date of Termination, an amount equal to two times the Executive's Base Salary
for the Fiscal Period in which the Date of Termination occurs in lieu of any
severance under the Company's Severance Plan,
(b) pay to the Executive a prorata portion of any bonus the Executive
would have earned in that Fiscal Period (based on the days covered by the
Agreement divided by the number of days in that Fiscal Period) as if he had been
employed for the full Fiscal Period payable at the same time the Company pays
other executive bonuses for that Fiscal Period,
(c) pay 18 months of health and welfare (COBRA) benefits that provide
the Executive with coverage comparable to other executives that are employed by
the Company during that time, and
(d) upon the Executive's providing appropriate documentation, pay up
to 7.5% of the Executive's Base Salary up to a maximum of $25,000 as
reimbursement for outplacement services provided the Executive provides proper
documentation supporting expenditures for this purpose within 18 months of the
Executive's termination of employment.
6.5 Termination following a Change of Control. If (a)
contemporaneously with or during the Change of Control Period, the Executive's
employment is terminated (i) by the Company or a successor entity other than for
Cause or (ii) by the Executive for Good Reason or (b) if the Executive's
employment with the Company is terminated or the Executive ceases to be an
officer of the Company prior to the date on which a Change of Control occurs and
it is reasonably demonstrated that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or in anticipation
of the Change of Control, the Company shall:
(a) pay to the Executive, in a lump sum within thirty days after the
Date of Termination, an amount equal to three (3) multiplied by the sum of (i)
the Base Salary and (ii) the Highest Annual Bonus;
(b) continue benefits to the Executive or the Executive's family from
the Date of Termination through the end of the Change of Control Period, or such
longer period as
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any plan, program, practice or policy may provide, at least equal to those which
would have been provided to them in accordance with the plans, programs,
practices and policies described in Sections 4.4, 4.6 and 4.7 of this Agreement
if the Executive's employment had not been terminated, in accordance with the
most favorable plans, practices, programs or policies of the Company and its
Affiliates applicable to other peer executives and their families during the
90-day period immediately preceding the Date of Termination, or, if more
favorable to the Executive, as in effect at any time thereafter with respect to
other peer executives of the Company and its Affiliates and their families. For
purposes of determining eligibility of the Executive for retiree benefits
pursuant to such plans, practices, programs and policies, the Executive shall be
considered to have remained employed until the end of the Change of Control
Employment Period and to have retired on the last day of such period;
(c) upon the Executive's providing appropriate documentation, pay up
to 7.5% of the Executive's Base Salary, up to a maximum of $25,000 as
reimbursement for outplacement services provided the Executive provides proper
documentation supporting expenditures for this purpose within 18 months of the
Executive's termination of employment, and
(d) make any additional payment required to be paid pursuant to
Section 10 hereof.
6.6 Non Disparagement. The Company agrees that the Company will not
make any negative of disparaging comments about the Executive unless required by
legal process to do so.
7. Effect of Termination. The provisions of this Section 7 shall apply in
the event of termination of the Executive's employment, pursuant to Section 5 or
otherwise.
7.1 Payment in Full. Payment by the Company to Executive of any Base
Salary and other specified amounts or benefits which are due the Executive (or,
as the case may be, the Executive's designated beneficiary, estate, surviving
spouse or dependents) under the applicable termination provision of Sections
6.1, 6.2, 6.3, 6.4 or 6.5 shall constitute the entire obligation of the Company
to the Executive under this Agreement, except that nothing in this Section 7.1
is intended or shall be construed to affect the rights and obligations of the
Company (or its Affiliates), on the one hand, and the Executive, on the other,
with respect to any option plans, option agreements, restricted stock grants,
awards or agreements, subscription agreements, stockholders agreements, employee
benefit plans or other equity arrangements or agreements to the extent said
rights or obligations survive termination of employment under the provisions of
documents relating thereto. The Executive shall only be eligible to receive the
benefits of Sections 6.1, 6.2, 6.3, 6.4 or 6.5 of this Agreement and shall not
be entitled to receive benefits under more than one such section. The Company's
obligation to provide payment and/or benefits set forth herein shall be
conditioned upon the Executive's (or the Executive's executor or legal
representative) execution of a Separation and Release Agreement consistent with
the terms of this Agreement in a form agreeable to the Company.
7.2 Termination of Benefits. Except as set forth above and for any
right of continuation of health coverage at the Executive's cost to the extent
provided by Sections 601
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through 608 of ERISA, all of the Executive's rights to any benefits under the
Welfare Benefit Plans shall terminate pursuant to the terms of the applicable
benefit plans based on the Date of Termination.
7.3 Return of Property. Within a reasonable time after the date of
termination of employment, the Executive shall return to the Company all of the
Company's property of which he is in possession, including, without limitation,
any material and documentation that constitutes Confidential Information, credit
cards, computers, and keys.
8. Executives Commitment to the Company.
8.1 Confidentiality. The Executive shall not, during the Employment
Period or for two years after the Employment Period (and for an indefinite
period for Confidential Information composed of trade secrets of the Company),
disclose any Confidential Information (as such term is defined herein) to any
Person for any reason or purpose whatsoever, other than in connection with the
performance of the Executive's duties under this Agreement. The term
"Confidential Information" shall mean all confidential information of or
relating to the Company and any of its Affiliates, including without limitation,
financial information and data, business plans and information regarding
prospects and opportunities (such as, by way of example only, client and
customer lists and acquisition, disposition, expansion, product development and
other strategic plans), but does not include any information that is or becomes
public knowledge by means other than the Executive's breach or nonobservance of
the Executive's obligations described in this Section 8.1. Notwithstanding the
foregoing, the Executive may disclose such Confidential Information as he may be
legally required to do so on the advice of counsel in connection with any legal
or regulatory proceeding; provided, however, that the Executive shall provide
the Company with prior written notice of any such required or potentially
required disclosure and shall cooperate with the Company and use their best
efforts under such circumstances to obtain appropriate confidential treatment of
any such Confidential Information that may be so required to be disclosed in
connection with any such legal or regulatory proceeding. In no event shall an
asserted violation of the provisions of this Section 8 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement during or with respect to the Change of Control Employment
Period.
8.2 Litigation. The Executive agrees to cooperate fully with the
Company, or its assignee, and counsel for the Company, or its assignee, in any
and all matters involving litigation, administrative proceedings, arbitration or
governmental investigations. The Executive's cooperation shall include being
reasonably available for, without limitation, interviews, depositions, and trial
testimony. To the extent that the Executive's cooperation involves travel, the
Company or its assignee will reimburse the Executive for their reasonable travel
expenses. To the extent that the Executive's cooperation requires him to incur
out-of-pocket expenses, including without limitation reasonable attorney's fees,
the Company or its assignee will reimburse such expenses, provided they are
reasonable and supported by reasonable documentation. The Executive will make
available, at the expense of the Company or its assignee, copies of all
documents and files requested by the Company in connection with this duty of
cooperation, excluding only those documents and files which are subject to any
attorney-client privilege, work product doctrine, or other legal protection from
disclosure that is held
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solely the Executive in their individual capacity, as opposed to any privilege
or legal protection from disclosure held by the Company.
8.3 Compliance with Securities Laws. The Executive agrees not to
directly or indirectly buy or sell the Company stock or other securities as long
as he possesses "material non-public information" as that term is defined by
interpretations of the Securities Exchange Act of 1934 and the rules and
regulations there under. Without limiting the generality of the foregoing, the
Executive further agrees to abide by the Company's Xxxxxxx Xxxxxxx policy as in
effect during the Employment Period until three (3) business days after the
public release of the financial results for the fiscal quarter ending after the
Executive's Date of Termination.
8.4 Position as Officer and Director. Upon the Executive's
termination of employment the Executive shall resign as an Officer/Director from
the Company and all Affiliates and any administrative roles in any plans
sponsored by the Company and its Affiliates and will execute all instruments and
documents requested by the Company to effectuate this.
8.5 Non Compete. The Executive agrees not to directly or indirectly
compete with the business of the Company and its successors and assigns during
the Employment Period and for a period of one year following the Executive's
termination of employment. The term "not compete" as used herein shall mean that
the Executive shall not own, manage, operate, consult or be an employee in a
business that has operations in the United States that are substantially similar
to or competitive with the business activity of the Company or any of its
Affiliates at the Executive Termination Date. Notwithstanding the foregoing the
Executive may own up to 5% of any stock or security that is publicly traded on
any national securities exchange or other market system.
8.6 Non-Solicitation. The Executive agrees for a period of one year
from the Executive's Termination Date that the Executive will not without the
prior written approval of the Company directly or indirectly: (i) solicit for
hire any employees of the Company or any Affiliate, or (ii) induce any employee
of the Company or any Affiliate to terminate their relationship with the Company
or Affiliate. The foregoing will not apply to individuals hired as a result of
the use of an independent employment agency (so long as the agency was not
directed to solicit a particular individual) or as a result of the use of a
general solicitation not specifically directed to Company or its Affiliate's
employees.
8.7 Non Disparagement. The Executive agrees that the Executive will
not make any negative of disparaging comments about the Company unless required
by legal process to do so.
8.8 Injunctive Relief. The Executive acknowledges and agrees that the
Company will have no adequate remedy at law, and would be irreparably harmed, if
the Executive breaches or threatens to breach any of the provisions of this
Section 8. The Executive agrees that the Company shall be entitled to equitable
and/or injunctive relief to prevent any breach or threatened breach of this
Section 8, and to specific performance of each of the terms of this Section 8 in
addition to any other legal or equitable remedies that the Company may have. The
Executive further agrees that he shall not, in any equity proceeding relating to
the
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enforcement of the terms of this Section 8, raise the defense that the Company
has an adequate remedy at law.
8.9 Special Severability. The terms and provisions of this Section 8
are intended to be separate and divisible provisions and if, for any reason, any
one or more of them is held to be invalid or unenforceable, and neither the
validity nor the enforceability of any other provision of this Agreement shall
thereby be affected.
9. Successors.
9.1 The Executive. This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by the
Executive, other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
heirs, beneficiaries and/or legal representatives.
9.2 The Company. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
9.3 Successors. 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 assume
expressly 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 and the Executive will consent to such successor's assumption.
As used in this Agreement, "Company" shall mean the Company as previously
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law or otherwise.
10. Additional Payment.
10.1 Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the Company
pursuant to Section 6.5 hereof to or for the benefit of the Executive (a
"Payment"), would be subject to the excise tax imposed by Section 4999 of the
Code or any interest or penalties are incurred by the Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. The Company will attempt to minimize any Excise Tax,
including accelerating payments to the Executive if possible, however if the
Payment results in an Excise Tax and reducing the Payment by up to 10%
eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up
to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still
exist after the aforementioned reduction in the Payment then there shall be no
reduction in the Payment.
10.2 Subject to the provisions of Section 10.3, all determinations
required to be made under this Section 10, including whether a Gross-Up Payment
is required and the amount
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of such Gross-Up Payment, shall be made by Ernst & Young LLP or another mutually
agreeable nationally recognized accounting firm (the "Accounting Firm") which
shall provide detailed supporting calculations both to the Company and the
Executive within fifteen business days of the Date of Termination, if
applicable, or such earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the Company. The
initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2,
shall be paid to the Executive within five days of the receipt of the Accounting
Firm's determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive with an opinion that
failure to report the Excise Tax on the Executive's applicable federal income
tax return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding upon the
Company and the Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 10.3 and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
10.3 The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but not later than twenty business days after the Executive knows of
such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on
which it gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If the
Company notifies the Executive in writing prior to the expiration of such period
that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order effectively to
contest such claim; and
(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income
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tax, including interest and penalties with respect thereto, imposed as a result
of such representation and payment of costs and expenses. Without limitation on
the foregoing provisions of this Section 10.3, the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest or penalties with respect thereto,
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
10.4 If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 10.3, the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 10.3) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to Section 10.3, a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
10.5 The Company may in its sole discretion make any payments required
by this Agreement to the Executive before the time it is otherwise required to
be paid pursuant to this Agreement and the Executive may not claim that such
payment is also required on the date otherwise due under this Agreement.
11. Full Settlement; Mitigation. The Company's obligation to make the
payments provided for in, and otherwise to perform its obligations under, this
Agreement shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action that the Company may have against the
Executive or others other than a claim, right or action for fraud after the
individual is judicially determined to have committed such action. In no event
shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement and such amounts shall not be reduced,
regardless of whether the Executive obtains other employment.
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12. Indemnification. The Company shall pay or indemnify the Executive to
the full extent permitted by law and the by-laws of the Company for all
expenses, costs, liabilities and legal fees which the Executive may incur in the
discharge of the Executive's duties hereunder.
13. Miscellaneous.
13.1 Applicable Law. This Agreement shall, to the extent not
superseded by federal law, be governed by and construed in accordance with the
laws of the State of Delaware, without regard to principles of conflict of laws.
13.2 Amendments/Waiver. This Agreement may not be amended, waived, or
modified otherwise than by a written agreement executed by the parties to this
Agreement or their respective successors and legal representatives. No waiver by
any party to this Agreement of any breach of any term, provision or condition of
this Agreement by the other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, or any prior or subsequent
time.
13.3 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when received by hand-delivery to the other
party, by overnight courier, or by registered or certified mail, return receipt
requested, postage prepaid, addressed, addressed as follows:
If to the Executive:
Xxxxx X. Xxxxxxxx
(address)
If to the Company:
The Compensation Committee
of the Board of Directors of Xxxxxxx, Inc.
c/x Xxxxxxx, Inc.
1041 000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000
With a copy to:
Xxxxxxx Xxxx, Esq.
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
or to such other addresses as either party furnishes to the other in writing in
accordance with this Section 13.3. Notices and communications shall be effective
when actually received by the addressee.
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13.4 Withholding. The Company may withhold from any amounts payable
under this Agreement such taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
13.5 Strict Compliance. The Executive's or Company's failure to
insist upon strict compliance with any provisions of, or to assert, any right
under, this Agreement shall not be deemed to be a waiver of such provision or
right or of any other provision of or right under this Agreement.
13.6 Enforceability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement. If any portion or provision of this
Agreement shall to any extent be declared illegal or unenforceable by a court of
competent jurisdiction, then the remainder of this Agreement, or the application
of such portion or provision in circumstances other than those as to which it is
so declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13.7 Captions; Counterparts. The captions of this Agreement are for
convenience of reference only, are not part of the terms of this Agreement and
shall have no force or effect in the application or interpretation thereof. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original and said counterparts shall constitute but one and the same
instrument.
13.8 Entire Agreement. This Agreement contains the entire agreement
between the parties to this Agreement concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
Specifically this Agreement replaces and supersedes in its entirety any prior
the Employment Agreement between the Company and the Executive.
13.9 Survivorship. The obligations of the Company and the Executive
under Sections 6, 7, 8, 9, 10, 11, 12 and 13 shall survive the expiration or
termination for any reason of this Agreement.
13.10 Assignment. The rights and benefits of the Executive under this
Agreement may not be anticipated, assigned, alienated or subject to the
attachment, garnishment, levy, execution or other legal or equitable process
except as required by law. Any attempt by the Executive to anticipate, alienate,
assign, sell, transfer, pledge, encumber or charge the same shall be void.
13.11 Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plans, programs, policies or practices
provided by the Company or any of its Affiliates and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any other agreements with the Company or any of its
Affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of the
Company or any of its Affiliates at or subsequent to
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the Date of Termination shall be payable in accordance with such plan, policy,
practice or program except as explicitly modified by this Agreement.
13.12 Arbitration. The Executive and the Company both agree to submit
any disputes under this Agreement to binding arbitration with a mutually
agreeable arbitrator and to make their best efforts to settle any disputes
within 90 days. In the event this does not occur and the Executive has
cooperated in the arbitration process the Company agrees to pay, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company or others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Executive about the amount of any
payment pursuant to Section 10 of this Agreement), plus in each case interest at
the applicable Federal rate provided for in Section 7872(f)(2) of the Code.
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IN WITNESS WHEREOF, the Executive has hereunto set their hand and,
pursuant to the authorization of its Board, the Company has caused this
Agreement to be executed in its name and on its behalf by a duly authorized
officer, as of the date set forth above.
XXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title Chief Financial Officer
EXECUTIVE
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
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