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EXHIBIT 10.63
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT dated as of November 5, 1997 (the
"Effective Date") between Xxxx Xxxxx Financial Corporation, a Delaware
corporation ("Employer") and Xxxxxxx X. Xxxxxxx ("Executive").
Employer, through its Affiliates (as defined below), is engaged in
the life insurance business. Executive is to be employed by Employer as its
Chairman and Chief Executive Officer.
The parties therefore agree as follows:
1. Employment and Duties. Employer hereby employs Executive and
Executive hereby accepts employment as Chairman and Chief Executive Officer of
Employer and, if Employer so elects, of any of the direct or indirect
subsidiaries of Employer. Such subsidiaries are sometimes referred to herein as
"Affiliates" of Employer. Executive shall have and perform the duties and have
the powers and authority of the Chairman and Chief Executive Officer under the
direction of the Board of Directors of Employer or such Affiliate, as the case
may be.
2. Services and Exclusivity of Services. So long as this Agreement
shall continue in effect, Executive shall devote his full business time and
energy to the business, affairs and interests of Employer and its Affiliates and
matters related thereto and shall use his best efforts and abilities to promote
its or their interests. Executive agrees to serve without additional
remuneration in such senior executive capacity for one or more of the Affiliates
of Employer, with responsibilities and authority commensurate with the nature of
Executive's responsibility and authority, as described in Paragraph 1, as the
Board of Directors of Employer may from time to time request, subject to
appropriate authorization by the Affiliates involved and any limitations under
applicable law. Executive agrees that he will faithfully and diligently endeavor
to promote the business, affairs and interests of Employer and its Affiliates.
Executive's failure to discharge an order or perform a function because
Executive reasonably and in good faith
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believes such would violate a law or regulation or be dishonest shall not be
deemed a breach by him of his obligations or duties hereunder.
Executive may serve as a director or in any other capacity of any
business enterprise, including an enterprise whose activities may involve or
relate to the business of Employer and its Affiliates, provided that such
service is expressly approved by the Board of Directors of Employer. Executive
may make and manage personal business investments of his choice and serve in any
capacity with any civic, educational or charitable organization, or any
governmental entity or trade association, without seeking or obtaining approval
by the Board of Directors of Employer, provided such activities and service do
not materially interfere or conflict with the performance of his duties
hereunder.
3. Place and Time of Services. Executive shall render his services
generally in, and shall not be obligated to maintain his office in any place
other than, Miami, Florida. Executive shall be required to take such trips as
may be reasonably necessary in connection with his duties hereunder, and
Employer shall, in addition to all other payments provided for hereunder, pay
Executive's transportation and living expenses in connection with each such trip
and subsequent return.
4. Term. The term of this Agreement shall commence as of the
Effective Date and shall continue until the third anniversary of the Effective
Date or until sooner terminated as set forth in Paragraph 6 below. (The term of
this Agreement is hereinafter sometimes referred to as the "Employment Period".)
Notwithstanding the foregoing, upon a Change in Control (as defined in Paragraph
7) the Employment Period shall extend for at least 3 years following such Change
in Control.
5. Compensation, Expenses and Other Benefits.
a. Base Salary. Employer shall pay Executive a base salary ("Base
Salary"), in equal installments on those days when it regularly pays its senior
executives, from and after the Effective Date at the annual rate of $719,264.00
Base Salary shall be reviewed at least
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annually and may be increased but shall not be decreased, and any such increased
Base Salary shall be the "Base Salary" for purposes of this Agreement.
b. Bonus. In addition to Executive's Base Salary, Employer shall
pay Executive an annual bonus, determined in accordance with the 1997 Xxxx Xxxxx
Short-Term Incentive Compensation Plan ("1997 Plan") and such successor plans as
may be adopted by Employer. The formula and other factors used to determine
Executive's future bonus payments (including, without limitation, the relative
percentage of Base Salary payable as a bonus at various performance levels),
based upon the comparison of the actual performance of Employer to the projected
performance levels of Employer, shall be no less favorable to Executive than the
formula and other factors used in the 1997 Plan. The projected performance
levels of Employer used in connection with such formula shall be determined in a
manner no less favorable to Executive than the manner in which such projected
levels were determined under the 1997 Plan. In the event that Executive's
employment hereunder is terminated (whether by death, disability or otherwise),
he shall receive payment of all accrued but unpaid bonus payments for prior
years. In the event of Executive's death, such payments will be made to the
persons specified in Paragraph 6(e).
c. Expenses. Employer shall promptly reimburse Executive for all
reasonable expenses incurred by him in connection with the performance of his
services under this Agreement, upon presentation of appropriate documentation in
accordance with Employer's and its Affiliates' customary procedures and policies
applicable to its and their senior executives. Additionally, Executive shall be
entitled to an expense allowance of $6,000 per annum, payable monthly, for which
Executive shall not be accountable.
d. Automobile. Employer shall make available for use by
Executive during the Employment Period an automobile of a kind (or automobile
allowance, at his option), and upon terms, comparable to those upon which
automobiles (or allowances) are provided to members of Employer's and its
Affiliates' senior management.
e. Benefits. Except as otherwise provided in this Agreement,
during the Employment Period Employer shall (i) provide Executive with the
benefits under Employer's
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and its Affiliates' present benefit plans and allowance programs, including, but
not limited to pension, life, accident, health, dental, disability, housing,
travel and accident insurance, employees' savings plans, bonus and incentive
compensation plans, executive medical examinations, supplemental employee
retirement plan benefits and other similar benefits and allowances; or (ii)
provide to Executive other benefit plans and allowance programs with benefit and
allowances at least equal to the benefits and allowances provided to Executive
under the existing benefit plans of Employer and its Affiliates. Notwithstanding
anything in this Agreement to the contrary, following Executive's date of
termination of employment (other than upon death or by Employer for Cause), for
the remainder of Executive's lifetime, Executive (and his family as applicable)
shall receive continued health insurance benefits from Employer at the level and
cost to Executive in effect as of his date of termination.
f. Vacation. Executive shall be entitled to a paid vacation
during each year of the Employment Period in accordance with the vacation policy
available to other senior executives of Employer and its Affiliates.
6. Termination.
a. With Cause. This Agreement may be terminated by either party
by written notice, at any time without advance notice, to the other, for
"Cause", which, for the purposes of this Agreement, shall be defined as (i) with
respect to termination by Executive, a material breach hereof by Employer,
including without limitation, assignment of duties inconsistent with the
position described in Paragraph 1, which breach is not cured within ten (10)
days of written notice to Employer of said breach; or (ii) with respect to a
termination by Employer, a material breach of this Agreement by Executive, which
breach is not cured within ten (10) days of written notice to Executive of said
breach, or Executive's conviction by a court of competent jurisdiction of a
felony or any crime involving moral turpitude, or Executive's willful misconduct
or breach of a fiduciary duty in the performance of his duties hereunder, which
crime, misconduct or breach is materially and demonstrably injurious to
Employer. For purposes of this provision, no act or failure to act, on the part
of Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action
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or omission was in the best interests of Employer. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for Employer shall be conclusively
presumed to be done, or omitted to be done, by Executive in good faith and in
the best interests of Employer. The cessation of employment of Executive shall
not be deemed to be for Cause unless and until there shall have been delivered
to Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (after reasonable notice is provided
to Executive and Executive is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of the conduct described in subparagraph above, and
specifying the particulars thereof in detail.
If Employer terminates this Agreement for Cause, or if Executive
terminates this Agreement without Cause, Executive shall be entitled to receive
his Accrued Obligations and Other Benefits (as such terms are defined in
Paragraph 6(c) of this Agreement), but shall not be entitled to additional
payments or benefits under this Agreement, except as specifically provided.
If Executive terminates this Agreement for Cause, he shall be entitled
to the same compensation which he would have received under Paragraph 6(b),
below, if Employer had terminated Executive on the same date without Cause.
b. Without Cause. This Agreement may be terminated by Employer
without Cause by written notice to Executive at least thirty (30) days prior to
the date of termination. If this Agreement is terminated by Employer without
Cause, Executive shall be entitled to receive a payment, payable in cash within
twenty days after the effective date of such termination, equal to two times
Executive's "Annual Compensation." Annual Compensation shall equal the total
cash compensation earned by Executive during the last full calendar year prior
to the date of termination, as would be required to be disclosed in a "Summary
Compensation Table" pursuant to Item 402(b) of Regulation S-K under the
Securities Exchange Act of 1933, as amended, and the rules and regulations
thereunder, as in effect on the date hereof, whether or not Employer is then
subject to such reporting requirements (including amounts not required to be
disclosed on
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the basis of immateriality such as perquisites and the cash value of any
non-cash benefits, but excluding amounts payable pursuant to pension, or
retirement plans and long-term incentive compensation awards of restricted stock
or securities underlying stock options or stock appreciation rights, and the
$300,000 payment made in 1997 as a special annuity sales bonus). Notwithstanding
anything to the contrary in this Agreement or in the Deferred Compensation
Agreement, dated April 2, 1997, between Employer and Executive (the "Deferred
Compensation Agreement"), Annual Compensation paid to Executive in any year
shall be deemed to include, for all purposes under this Agreement, any and all
amounts that are not actually paid in such year, but are deferred pursuant to
the Deferred Compensation Agreement and that, but for the provisions of the
Deferred Compensation Agreement would have been paid in such year, but shall not
otherwise be deemed to include any amounts accrued as earnings under, or paid to
Executive pursuant to, the Deferred Compensation Agreement.
Such amounts shall, unless otherwise specified herein, be paid to
Executive at the times when his salary or other compensation would have been
payable pursuant to the terms of this Agreement, but for the termination of this
Agreement, except that if any such payment is not made to Executive within
twenty (20) business days of the date on which it is due under the terms hereof,
all such payments shall, at the option of Executive, become immediately due and
payable in full. In the event of a termination under this Paragraph 6(b),
Executive shall also be entitled to receive his Accrued Obligations and Other
Benefits (as such terms are defined in Paragraph 6(c) of this Agreement).
c. Change in Control Severance. Notwithstanding anything in this
Agreement to the contrary, upon the occurrence of a "Change in Control" (as
defined in Paragraph 7 below) or thereafter, Executive may terminate this
Agreement, without advance notice, and Employer shall provide Executive with the
following payments and benefits:
(i) Employer shall pay to Executive in a lump sum in cash
within twenty days after the date of termination the aggregate of the
following amounts:
A. the sum of (1) Executive's Base Salary through the
date of termination to the extent not theretofore paid, (2) the
product of (x) the higher of (I) Executive's target bonus
under the 1997 Plan or (II) Executive's target bonus
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under Employer's short-term incentive compensation plan for any
subsequent year and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the date of
termination, and the denominator of which is 365 and (3) any
compensation previously deferred by Executive (together with any
accrued interest or earnings thereon) and any accrued vacation
pay, in each case to the extent not theretofore paid (the sum of
the amounts described in clauses (1), (2), and (3) shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) three and (2)
the greater of (A) Executive's Annual Compensation in 1997 or (B)
Executive's greatest Annual Compensation for any subsequent year
prior to his termination of employment; and
C. an amount equal to the difference between (a) the
aggregate benefit under Employer's qualified and all other
defined benefit retirement plans (collectively, the "Retirement
Plan") and any excess or supplemental defined benefit retirement
plans in which Executive participates, including without
limitation the Company's supplemental pension plan, and
supplemental executive retirement plan for Executive
(collectively, the "SERP"), which Executive would have accrued
(whether or not vested) if Executive's employment had continued
for three (3) years after the date of termination (based on the
assumption that Executive's compensation in each of the three (3)
years following such termination would have been Executive's
compensation for the calendar year prior to the year in which
Executive's date of termination occurs), and (b) the actual
vested benefit, if any, of Executive under the Retirement Plan
and the SERP, determined as of the date of termination (with the
foregoing amounts to be computed on an actuarial present value
basis, using actuarial assumptions no less favorable to Executive
than the most favorable of those in effect for purposes of
computing benefit entitlements under the Retirement Plan
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and the SERP at any time from the day before the Effective Date)
through the date of termination;
(ii) for three (3) years after Executive's date of
termination, or such longer period as may be provided by the terms of
the appropriate plan, program, practice or policy, Employer shall
continue welfare benefits to Executive and/or Executive's family at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies described
in Section 5(e) of this Agreement if Executive's employment had not
been terminated or, if more favorable to Executive, as in effect
generally at any time thereafter with respect to other peer executives
of Employer and its affiliated companies and their families, provided,
however, that if Executive becomes reemployed with another employer
and is eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility, and for purposes of
determining eligibility (but not the time of commencement of benefits)
of Executive for retiree benefits pursuant to such plans, practices,
programs and policies, Executive shall be considered to have remained
employed until three (3) years after the Date of Termination and to
have retired on the last day of such period; and
(iii) to the extent not theretofore paid or provided,
Employer shall timely pay or provide to Executive any other amounts or
benefits required to be paid or provided or which Executive is
eligible to receive under any plan, program, policy or practice or
contract or agreement of Employer and its affiliated companies (such
other amounts and benefits shall be hereinafter referred to as the
"Other Benefits").
Notwithstanding anything in this Agreement to the contrary, the payments and
benefits in this Paragraph 6(c) shall also be paid to Executive in the event
that (i) the Company terminates Executive's employment without Cause following a
Change in Control; (ii) Executive's employment with Employer is terminated prior
to the date on which a Change in Control occurs, and it is reasonably
demonstrated by Executive that such termination of employment prior to the
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date on which a Change in Control occurs was at the request of a third party who
has taken steps reasonably calculated to effect a Change in Control or otherwise
arose in connection with or anticipation of a Change in Control; or (iii)
Employer fails to comply with Paragraph 11(e). If applicable, the payments and
benefits under this Paragraph 6(c) shall be lieu of the payments under Paragraph
6(b) of this Agreement.
d. Disability. In the event that Executive shall fail, because of
illness or injury, to render for six (6) consecutive calendar months services
contemplated by this Agreement, the employment of Executive hereunder may be
terminated by written notice of termination from Employer to Executive. Nothing
herein shall be construed to limit the right of Executive to receive disability
benefits under employee benefit plans of Employer or its Affiliates. Within
twenty days of the effective date of such termination, Employer shall pay
Executive an amount, in cash, equal to (i) two (2) times Executive's Annual
Compensation, and (ii) Executive's Accrued Obligations. Executive shall also
receive his Other Benefits.
e. Death. In the event of Executive's death prior to termination or
expiration of this Agreement, Employer shall, within twenty days thereof, make a
cash payment equal to (i) two (2) times Executive's Annual Compensation and (ii)
Executive's Accrued Obligations to such person or persons as Executive shall
have directed in writing or, in the absence of a designation, to his estate.
Executive's Other Benefits shall be paid under the terms of the specific plans,
programs, practices and policies. This Agreement in all other respects, except
as provided herein, will terminate upon the death of Executive. Notwithstanding
the foregoing, if prior to the death of Executive, Employer shall have
terminated this Agreement without Cause, or Executive shall have terminated this
Agreement for Cause, or a Change in Control shall have occurred, or Executive's
employment is terminated upon his disability, Employer shall continue to be
obligated to make the payment required by the appropriate provisions of this
Agreement to such person or persons as Executive shall have directed in writing,
or, in the absence of a designation, to his estate.
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Employer shall purchase and maintain at all times during the
Employment Period, insurance on the life of Executive, payable in accordance
with the applicable provisions hereof, sufficient to make the payments required
pursuant to this Paragraph 6(e).
The rights of Executive under this Agreement and of any beneficiary
of Executive or of any other person who may acquire such rights shall be solely
those of an unsecured creditor of Employer. Any insurance policy or any other
asset acquired by Employer in connection with the obligations assumed by it
hereunder shall not be deemed to be held under any trust for the benefit of
Executive or his beneficiaries or to be security for the performance of the
obligations of Employer, but shall be, and remain, a general, unpledged,
unrestricted asset of Employer.
7. Change in Control Defined. For the purpose of this Agreement, a
"Change in Control" shall mean:
a. The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of Employer (the
"Outstanding Employer Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of Employer entitled to vote generally in the
election of directors (the "Outstanding Employer Voting Securities"); provided,
however, that for purposes of this subsection (a), the following acquisitions
shall not constitute a Change in Control: (i) any acquisition directly from
Employer, (ii) any acquisition by Employer, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by Employer or
any corporation controlled by Employer or (iv) any acquisition pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of
this Paragraph 7; or
b. Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by
Employer's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though
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such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
c. Consummation by Employer of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of Employer or the acquisition of assets of
another entity (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Employer Common Stock and Outstanding Employer Voting Securities immediately
prior to such Business Combination beneficially own, directly or indirectly,
more than 60% 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 Business Combination (including, without
limitation, a corporation which as a result of such transaction owns Employer or
all or substantially all of Employer's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Employer
Common Stock and Outstanding Employer Voting Securities, as the case may be,
(ii) no Person (excluding any employee benefit plan (or related trust) of
Employer or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
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8. Certain Additional Payments by Employer.
a. Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment, award, benefit or
distribution (or any acceleration of a payment, award, benefit or distribution)
by Employer (or any of its affiliated entities) or by any entity which
effectuates a Change in Control (or any of its affiliated entities) to or for
the benefit of Executive (whether pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Paragraph 8) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"),
or any corresponding provisions of state or local tax laws, or any interest or
penalties are incurred by 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"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments. The payment of a Gross-Up Payment
under this Paragraph 8(a) shall not be conditioned upon Executive's termination
of employment.
b. Subject to the provisions of Paragraph 8(c), all
determinations required to be made under this Paragraph 8, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Price Waterhouse LLP or such other certified public accounting firm as may be
designated by Executive (the "Accounting Firm"), which shall provide detailed
supporting calculations both to Employer and Executive within 15 business days
of the receipt of notice from Executive that there has been a Payment, or such
earlier time as is requested by Employer. In the event that the Accounting Firm
is serving as accountant or auditor for the individual, entity or group
effecting the Change in Control, Executive shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and
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expenses of the Accounting Firm shall be borne solely by Employer. Any Gross-Up
Payment, as determined pursuant to this Paragraph 8, shall be paid by Employer
to Executive within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
Employer and 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 Employer should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that Employer
exhausts its remedies pursuant to Paragraph 8(c) and 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 Employer to or for the benefit of
Executive.
c. Executive shall notify Employer in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by
Employer of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after Executive is informed in
writing of such claim and shall apprise Employer of the nature of such claim and
the date on which such claim is requested to be paid. Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on
which Executive gives such notice to Employer (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due). If
Employer notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give Employer any information reasonably requested by
Employer relating to such claim,
(ii) take such action in connection with contesting such claim as
Employer 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 Employer,
(iii) cooperate with Employer in good faith in order effectively
to contest such claim, and
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(iv) permit Employer to participate in any proceedings relating
to such claim;
provided, however, that Employer 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 Executive harmless, on an
after-tax basis, for any Excise Tax or income 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 Paragraph 8(c), Employer 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
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and 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 Employer shall determine;
provided, however, that if Employer directs Executive to pay such claim and xxx
for a refund, Employer shall advance the amount of such payment to Executive, on
an interest-free basis and shall indemnify and hold 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 Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore,
Employer's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and 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.
d. If, after the receipt by Executive of an amount advanced by
Employer pursuant to Paragraph 8(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to Employer's
complying with the requirements of Paragraph 8(c)) promptly pay to Employer the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Executive of an amount
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advanced by Employer pursuant to Paragraph 8(c), a determination is made that
Executive shall not be entitled to any refund with respect to such claim and
Employer does not notify 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.
9. Confidentiality. Executive agrees that he will not make use of,
divulge or otherwise disclose, directly or indirectly, any trade secret or other
confidential information concerning the business or policies of Employer or any
of its Affiliates, which he may have learned as a result of his employment
during the Employment Period or prior thereto as stockholder, employee, officer
or director of Employer or any of its Affiliates, except to the extent such use
or disclosure is (i) necessary to the performance of this Agreement and in
furtherance of the best interests of Employer and its Affiliates, (ii) required
by applicable law, (iii) lawfully obtainable from other sources, or (iv)
authorized by Employer or its Affiliates. The provisions of this subsection
shall survive the expiration, suspension or termination, for any reason, of this
Agreement. In no event shall an asserted violation of the provisions of this
Section 9 constitute a basis for deferring or withholding any amounts otherwise
payable to Executive under this Agreement.
10. Full Settlement; Legal Fees. Employer's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which Employer may have against
Executive or others. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to Executive under any of the provisions of this Agreement and except as
specifically provided in Paragraph 6(c)(ii), such amounts shall not be reduced
whether or not Executive obtains other employment. Employer agrees to pay as
incurred, to the full extent permitted by law, all legal fees and expenses which
Executive may reasonably incur as a result of any contest (regardless of the
outcome thereof) by Employer, Executive or others of the validity or
enforceability of, or liability or entitlement under, any provision of this
Agreement or any guarantee of performance
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thereof (whether such contest is between Employer and Executive or between
either of them and any third party, and including as a result of any contest by
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at 120% of the applicable Federal rate
(that applies to the time period of the delay) provided for in Section
7872(f)(2)(A) of the Code, compounded annually.
11. Miscellaneous.
a. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed in that state.
b. Any notice or other communication under this Agreement shall
be in writing and shall be considered given when delivered personally or upon
receipt by the addressee after mailing by U.S. registered mail to the parties at
the following addresses or at such other address as a party may specify by
notice to the other.
If to Executive:
Xxxxxxx X. Xxxxxxx
00000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to Employer:
Xxxx Xxxxx Financial Corporation
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: General Counsel
c. This Agreement, when it becomes effective, shall supersede
all existing employment agreements between Executive and Employer or any of its
Affiliates relating to the
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terms of his employment. It may not be amended except by a written agreement
signed by both parties.
d. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
e. Subject to the limitations below, this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement shall not be
assignable by Executive, and shall be assignable by Employer only to any
corporation resulting from the reorganization, merger or consolidation of
Employer with any other corporation or any corporation to which Employer may
sell, lease or otherwise transfer all or substantially all of its assets, and it
must be so assigned by Employer to, and accepted as binding upon it by, such
other corporation in connection with any such reorganization, merger,
consolidation, sale, lease or transfer. Employer 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 Employer to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that Employer would be required to perform it if no such succession had
taken place. As used in this Agreement, "Employer" shall mean Employer as
hereinbefore 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.
f. Employer shall indemnify Executive, in his capacity as an
officer or director of Employer or any of its Affiliates to the full extent
permissible under the laws of the State of Delaware, or of the state of
incorporation of the relevant Affiliate as the case may be.
g. This Agreement shall supersede the Employment Agreement
between the Company and Executive, dated as of October 2, 1992, as amended, and
shall supercede the right of Executive to participate in any severance plan of
the Company or otherwise receive severance benefits from the Company.
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IN WITNESS WHEREOF, Executive has hereunto set Executive's hand
and, pursuant to the authorization from its Board of Directors, Employer has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
XXXX XXXXX FINANCIAL CORPORATION
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Title: Chief Financial Officer & SVP
-----------------------------
/s/ XXXXXXX X. XXXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxxx
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