Exhibit 10.2
AMENDED AND RESTATED
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("Agreement") between Xxxxxxx Enterprises,
Inc., a Louisiana corporation (the "Company"), and Xxxxxx X. Kitchen (the
"Employee") was originally effective as of November 1, 2004 (the "Change of
Control Agreement Date") and is amended and restated effective as of November 8,
2006 (the "Amendment Date").
ARTICLE I
DEFINITIONS
1.1 EMPLOYMENT AGREEMENT. After a Change of Control (defined below), this
Agreement supersedes the Amended and Restated Employment Agreement effective as
of ____________ ___, 2006 between Employee and the Company (the "Employment
Agreement") except to the extent that certain provisions of the Employment
Agreement are expressly incorporated by reference herein. After a Change of
Control, the definitions in this Agreement supersede definitions in the
Employment Agreement, but capitalized terms used herein that are not defined in
this Agreement have the meanings given to them in the Employment Agreement.
1.2 DEFINITION OF "COMPANY." As used in this Agreement, "Company" shall
mean the Company as defined above and any successor to or assignee of (whether
direct or indirect, by purchase, merger, consolidation or otherwise) all or
substantially all of the assets or business of the Company.
1.3 CHANGE OF CONTROL DEFINED. "Change of 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 Exchange Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of more than 30% of the outstanding shares of the Company's Class A
Common Stock, no par value per share (the "Common Stock"); provided,
however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control:
(i) any acquisition of Common Stock directly from the Company,
(ii) any acquisition of Common Stock by the Company,
(iii) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or
(iv) any acquisition of Common Stock by any corporation pursuant
to a transaction that complies with clauses (i), (ii) and (iii) of
subsection (c) of this Section 1.3; or
(b) individuals who, as of the Change of Control Agreement Date,
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 Change of Control Agreement Date whose election, or
nomination for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered a member of the Incumbent Board, unless such
individual's 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 Incumbent Board; or
(c) consummation of a reorganization, merger or consolidation, or sale
or other disposition of all of substantially all of the assets of the
Company (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 of the Company's outstanding common stock
and the Company's voting securities entitled to vote generally in the
election of directors immediately prior to such Business Combination
have direct or indirect beneficial ownership, respectively, of 50% or
more of the then outstanding shares of common stock, and 50% or more
of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, of the
corporation resulting from such Business Combination (which, for
purposes of this paragraph (i) and paragraphs (ii) and (iii), shall
include a corporation which as a result of such transaction controls
the Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries), and
(ii) except to the extent that such ownership existed prior to
the Business Combination, no person (excluding any corporation
resulting from such Business Combination or any employee benefit plan
or related trust of the Company or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
20% or more of the then outstanding shares of common stock of the
corporation resulting from such Business Combination or 20% or more of
the combined voting power of the then outstanding voting securities of
such corporation, and
(iii) at least 50% 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
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
1.4 AFFILIATE. "Affiliate" or "affiliated companies" shall mean any company
controlled by, controlling, or under common control with, the Company.
1.5 CAUSE. "Cause" shall mean:
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(a) the willful and continued failure of the Employee to perform
substantially the Employee's duties with the Company or its affiliates
(other than any such failure resulting from incapacity due to physical or
mental illness), after a written demand for substantial performance is
delivered to the Employee by the Board of the Company which specifically
identifies the manner in which the Board believes that the Employee has not
substantially performed the Employee's duties, or
(b) the willful engaging by the Employee in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company or
its affiliates.
For purposes of this provision, no act or failure to act, on the part of the
Employee, shall be considered "willful" unless it is done, or omitted to be
done, by the Employee in bad faith or without reasonable belief that the
Employee's action or omission was in the best interests of the Company or its
affiliates. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or upon the instructions of a senior
officer of the Company or based upon the advice of counsel for the Company or
its affiliates shall be conclusively presumed to be done, or omitted to be done,
by the Employee in good faith and in the best interests of the Company or its
affiliates. The cessation of employment of the Employee shall not be deemed to
be for Cause unless and until there shall have been delivered to the Employee 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 the
Employee and the Employee is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
the Employee is guilty of the conduct described in subparagraph (a) or (b)
above, and specifying the particulars thereof in detail.
1.6 GOOD REASON. "Good Reason" shall mean:
(a) Any failure of the Company or its affiliates to provide the
Employee with the position, authority, duties and responsibilities at least
commensurate in all material respects with the most significant of those
held, exercised and assigned at any time during the 120-day period
immediately preceding the Change of Control. Employee's position,
authority, duties and responsibilities after a Change of Control shall not
be considered commensurate in all material respects with Employee's
position, authority, duties and responsibilities prior to a Change of
Control unless after the Change of Control Employee holds (i) an equivalent
position in the Company or, (ii) if the Company is controlled or will after
the transaction be controlled by another company (directly or indirectly),
an equivalent position in the ultimate parent company.
(b) The assignment to the Employee of any duties inconsistent in any
material respect with Employee's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities
as contemplated by Section 2.1(b) of this Agreement, or any other action
that results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith that is remedied within 10 days
after receipt of written notice thereof from the Employee to the Company;
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(c) Any failure by the Company or its affiliates to comply with any of
the provisions of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith that is remedied within 10
days after receipt of written notice thereof from the Employee to the
Company;
(d) The Company or its affiliates requiring the Employee to be based
at any office or location other than as provided in Section 2.1(b)(ii)
hereof or requiring the Employee to travel on business to a substantially
greater extent than required immediately prior to the Change of Control;
(e) Any purported termination of the Employee's employment otherwise
than as expressly permitted by this Agreement; or
(f) Any failure by the Company to comply with and satisfy Sections
3.1(c) and (d) of this Agreement.
For purposes of this Section 1.6, any good faith determination of "Good Reason"
made by the Employee shall be conclusive. Anything in this Agreement to the
contrary notwithstanding, a termination by the Employee for any reason during
the 30-day period immediately following the first anniversary of the Change of
Control shall be deemed to be a termination for Good Reason.
ARTICLE II
CHANGE OF CONTROL BENEFIT
2.1 EMPLOYMENT TERM AND CAPACITY AFTER CHANGE OF CONTROL.
(a) If a Change of Control occurs on or before October 31, 2007, then
the Employee's employment term (the "Employment Term") shall continue
through the later of (i) the second anniversary of the Change of Control or
(ii) October 31, 2007, subject to any earlier termination of Employee's
status as an employee pursuant to this Agreement.
(b) After a Change of Control and during the Employment Term, (i) the
Employee's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those
held, exercised and assigned at any time during the 120-day period
immediately preceding the Change of Control and (ii) the Employee's service
shall be performed at the location where the Employee was employed
immediately preceding the Change of Control or any office or location less
than 35 miles from such location. Employee's position, authority, duties
and responsibilities after a Change of Control shall not be considered
commensurate in all material respects with Employee's position, authority,
duties and responsibilities prior to a Change of Control unless after the
Change of Control Employee holds (x) an equivalent position in the Company
or, (y) if the Company is controlled or will after the transaction be
controlled by another company (directly or indirectly), an equivalent
position in the ultimate parent company. Employee shall devote himself to
his employment responsibilities with the Company (or, if applicable, the
ultimate parent entity) as provided in Article I Section 3 of the
Employment Agreement.
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2.2 COMPENSATION AND BENEFITS. During the Employment Term, Employee shall
be entitled to the following compensation and benefits:
(a) Salary. A salary ("Base Salary") at the highest rate provided for
under the Employment Agreement at any time during the 120-day period
immediately preceding the Change of Control, payable to the Employee at
such intervals no less frequent than the most frequent intervals in effect
at any time during the 120-day period immediately preceding the Change of
Control or, if more favorable to the Employee, the intervals in effect at
any time after the Change of Control for other peer employees of the
Company and its affiliated companies.
(b) Bonus. An annual incentive bonus (the "Bonus") equal to the
maximum annual amount that the Employee was eligible to receive at any time
during the 120-day period immediately preceding the Change of Control. The
Bonus shall be paid in cash no later than 2-1/2 months following the close
of the fiscal year for which it is earned.
(c) Fringe Benefits. The Employee shall be entitled to fringe benefits
(including, but not limited to, automobile allowance, reimbursement for
membership dues, and air travel) in accordance with the most favorable
agreements, plans, practices, programs and policies of the Company and its
affiliated companies in effect for the Employee at any time during the
120-day period immediately preceding the Change of Control or, if more
favorable to the Employee, as in effect generally at any time thereafter
with respect to other peer employees of the Company and its affiliated
companies.
(d) Expenses. The Employee shall be entitled to receive prompt
reimbursement for all reasonable business expenses incurred by the Employee
in accordance with the most favorable agreements, policies, practices and
procedures of the Company and its affiliated companies in effect for the
Employee at any time during the 120-day period immediately preceding the
Change of Control or, if more favorable to the Employee, as in effect
generally at any time thereafter with respect to other peer employees of
the Company and its affiliated companies.
(e) Incentive, Savings and Retirement Plans. The Employee shall be
entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer
employees of the Company and its affiliated companies, but in no event
shall such plans, practices, policies and programs provide the Employee
with incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable than the most favorable of
those provided by the Company and its affiliated companies for the Employee
under any agreements, plans, practices, policies and programs as in effect
at any time during the 120-day period immediately preceding the Change of
Control or, if more favorable to the Employee, those provided generally at
any time after the Change of Control to other peer employees of the Company
and its affiliated companies.
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(f) Welfare Benefit Plans. The Employee and/or the Employee's family,
as the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies (including,
without limitation, medical, prescription, dental, disability, employee
life, group life, accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other peer employees of the
Company and its affiliated companies, but in no event shall such plans,
practices, policies and programs provide the Employee with benefits, in
each case, less favorable than the most favorable of any agreements, plans,
practices, policies and programs in effect for the Employee at any time
during the 120-day period immediately preceding the Change of Control or,
if more favorable to the Employee, those provided generally at any time
after the Change of Control to other peer employees of the Company and its
affiliated companies.
(g) Office and Support Staff. The Employee shall be entitled to an
office or offices of a size and with furnishings and other appointments,
and to exclusive personal secretarial and other assistance, at least equal
to the most favorable of the foregoing provided to the Employee by the
Company and its affiliated companies at any time during the 120-day period
immediately preceding the Change of Control or, if more favorable to the
Employee, as provided generally at any time thereafter with respect to
other peer employees of the Company and its affiliated companies.
(h) Vacation. The Employee shall be entitled to paid vacation in
accordance with the most favorable agreements, plans, policies, programs
and practices of the Company and its affiliated companies as in effect for
the Employee at any time during the 120-day period immediately preceding
the Change of Control or, if more favorable to the Employee, as in effect
generally at any time thereafter with respect to other peer employees of
the Company and its affiliated companies.
2.3 TERMINATION OF EMPLOYMENT AFTER A CHANGE OF CONTROL. After a Change of
Control and during the Employment Term, the Employee's status as an employee
shall terminate or may be terminated by the Employee, the Company (or, if
applicable, the ultimate parent company), as provided in Article III of the
Employment Agreement (provided, however, that the definitions of "Cause" and
"Good Reason" in this Agreement shall supersede those definitions in the
Employment Agreement).
2.4 OBLIGATIONS UPON TERMINATION AFTER A CHANGE OF CONTROL.
(a) Termination by Company for Reasons other than Death, Disability or
Cause; by Employee for Good Reason. If, after a Change of Control and
during the Employment Term, the Company (or, if applicable the ultimate
parent company), terminates the Employee's employment other than for Cause,
death or Disability, or the Employee terminates employment for Good Reason,
the Company shall pay to the Employee in a lump sum in cash on the first
business day that is more than six months after the Date of Termination) an
amount equal to three times the sum of (i) the amount of Base Salary in
effect at the Date of Termination, plus (ii) the average annual bonus
(including in the calculation of such average any Bonus referred to in
Section 2.2(b)
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hereof, if applicable) earned by the Employee during the three most
recently completed fiscal years prior to the Date of Termination or, if the
Employee has been employed by the Company for less than three years, the
number of years during such period that the Employee was employed by the
Company and eligible to receive a bonus.
(b) Death. If, after a Change of Control and during the Employment
Term, the Employee's status as an employee is terminated by reason of the
Employee's death, this Agreement shall terminate without further obligation
to the Employee's legal representatives (other than those already accrued
to the Employee), other than the obligation to make any payments due
pursuant to employee benefit plans maintained by the Company or its
affiliated companies.
(c) Disability. If, after a Change of Control and during the
Employment Term, Employee's status as an employee is terminated by reason
of Employee's Disability (as defined in the Employment Agreement), this
Agreement shall terminate without further obligation to the Employee (other
than those already accrued to the Employee), other than the obligation to
make any payments due pursuant to employee benefit plans maintained by the
Company or its affiliated companies.
(d) Cause. If, after a Change of Control and during the Employment
Term, the Employee's status as an employee is terminated by the Company
(or, if applicable, the ultimate parent entity) for Cause, this Agreement
shall terminate without further obligation to the Employee other than for
obligations imposed by law and obligations imposed pursuant to any employee
benefit plan maintained by the Company or its affiliated companies.
(e) Termination by Employee for Reasons other than Good Reason. If,
after a Change of Control and during the Employment Term, the Employee's
status as an employee is terminated by the Employee for reasons other than
Good Reason, then the Company shall pay to the Employee an amount equal to
a single year's Base Salary in effect at the Date of Termination, payable
over a two-year period as follows: beginning on the first regular payroll
date that is at least six months after the Date of Termination, at which
time the Employee shall be paid one-fourth of a single year's Base Salary
and the remaining three-fourths shall be paid in equal installments on the
Company's regular bi-weekly payroll dates over the following 18 months.
(f) Nondisclosure, Noncompetition and Proprietary Rights. The rights
and obligations of the Company and Employee contained in Article V
("Nondisclosure, Noncompetition and Proprietary Rights") of the Employment
Agreement shall continue to apply after a Change of Control, except as
provided in Section 2.11 of this Agreement.
2.5 ACCRUED OBLIGATIONS AND OTHER BENEFITS. It is the intent of the
Employment Agreement and this Agreement that upon termination of employment for
any reason the Employee be entitled to receive promptly, and in addition to any
other benefits specifically provided, (a) the Employee's Base Salary through the
Date of Termination to the extent not theretofore paid, (b) any accrued vacation
pay, to the extent not theretofore paid, and (c) any other amounts or benefits
required to be paid or provided or which the Employee is entitled to
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receive under any plan, program, policy practice or agreement of the Company,
subject to any requirement under Section 409A of the Internal Revenue Code of
1986, as amended (the "Code"), that such payment of benefits be delayed for six
months following termination of employment.
2.6 NO ACCELERATION OF PAYMENTS. No acceleration of payments and benefits
provided herein shall be permitted, except that the Company may accelerate
payment, if permitted under the regulations under Section 409A of the Code, as
necessary to allow the Employee to pay FICA taxes on amounts payable hereunder
and additional taxes resulting from the payment of such FICA amount or as
necessary to pay taxes and penalties arising as a result of the payments
provided for in this Agreement failing to meet the requirements of Section 409A
of the Code.
2.7 STOCK OPTIONS. The foregoing benefits are intended to be in addition to
the value of any options to acquire Common Stock of the Company the
exercisability of which is accelerated pursuant to the terms of any stock
option, incentive or other similar plan heretofore or hereafter adopted by the
Company.
2.8 PROTECTION OF BENEFITS. To the extent permitted by applicable law, the
Company shall take all reasonable steps to ensure that the Employee is not, by
reason of a Change of Control, deprived of the economic value (including any
value attributable to the Change of Control transaction) of (a) any options to
acquire Common Stock of the Company or (b) any Common Stock of the Company
beneficially owned by the Employee.
2.9 CERTAIN ADDITIONAL PAYMENTS. If after a Change of Control Employee is
subjected to an excise tax as a result of the "excess parachute payment"
provisions of Section 4999 of the Internal Revenue Code of 1986, as amended,
whether by virtue of the benefits of this Agreement or by virtue of any other
benefits provided to Employee in connection with a Change of Control pursuant to
Company plans, policies or agreements (including the value of any options to
acquire Common Stock of the Company the exercisability of which is accelerated
pursuant to the terms of any stock option, incentive or similar plan heretofore
or hereafter adopted by the Company), the Company shall pay to Employee such
amounts as are necessary to place Employee in the same position after payment of
federal income and excise taxes as he would have been if such provisions had not
been applicable to him. If Employee is subjected to an excise tax as a result of
an "excess parachute payment" in connection with a Change of Control, such
payment shall only be made at the time of the Change of Control, if the Change
of Control constitutes a change in ownership or effective control of the Company
or a change in the ownership of a substantial portion of the Company's assets,
as such terms are defined in the regulations and guidance issued under Section
409A of the Code (a "409A Change of Control"). If the Change of Control does not
constitute a 409A Change of Control, the payment shall instead be made to
Employee 30 days following termination of his employment for any reason, plus
interest at the rate per annum equal to the Company's weighted average cost of
capital, as determined by the Company's Treasury Department and certified by the
Chief Financial Officer, from the date of payment of the excise tax by the
Employee through the date of payment by the Company under this Section 2.9.
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2.10 LEGAL FEES. The Company agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which the Employee may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Company, the Employee or others of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Employee about the amount or timing of any payment pursuant to
this Agreement.)
2.11 SET-OFF; MITIGATION. After a Change of Control, the Company's and its
affiliates' obligations 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
the Company or its affiliates may have against the Employee or others. After a
Change of Control, an asserted violation of the provisions of Article V
("Nondisclosure, Noncompetition and Proprietary Rights") of the Employment
Agreement shall not constitute a basis for deferring or withholding any amounts
otherwise payable to the Employee; specifically, the third through sixth
sentences of Article V Section 4 shall not apply after a Change of Control. It
is the intent of the Employment Agreement and this Agreement that in no event
shall the Employee be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Employee under any of
the provisions of this Agreement or the Employment Agreement.
ARTICLE III
MISCELLANEOUS
3.1 BINDING EFFECT; SUCCESSORS.
(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being
no obligation to give such consent) other than such rights or benefits as
are transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of (whether
direct or indirect, by purchase, merger, consolidation or otherwise) all or
substantially all of the assets or businesses of the Company (i) to assume
unconditionally and expressly this Agreement and (ii) to agree to perform
or to cause to be performed all of the obligations under this Agreement in
the same manner and to the same extent as would have been required of the
Company had no assignment or succession occurred, such assumption to be set
forth in a writing reasonably satisfactory to the Employee.
(d) The Company shall also require all entities that control or that
after the transaction will control (directly or indirectly) the Company or
any such successor or assignee to agree to cause to be performed all of the
obligations under this Agreement, such agreement to be set forth in a
writing reasonably satisfactory to the Employee.
3.2 NOTICES. All notices hereunder must be in writing and shall be deemed
to have given upon receipt of delivery by: (a) hand (against a receipt
therefor), (b) certified or registered
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mail, postage prepaid, return receipt requested, (c) a nationally recognized
overnight courier service (against a receipt therefor) or (d) telecopy
transmission with confirmation of receipt. All such notices must be addressed as
follows:
If to the Company, to:
Xxxxxxx Enterprises, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Chairman of the Board
If to the Employee, to:
Xxxxxx X. Kitchen
000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or such other address as to which any party hereto may have notified the other
in writing.
3.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws, except as expressly provided
in Article V Section 6 of the Employment Agreement with respect to the
resolution of disputes arising under, or the Company's enforcement of, such
Article V.
3.4 WITHHOLDING. The Employee agrees that the Company has the right to
withhold, from the amounts payable pursuant to this Agreement, all amounts
required to be withheld under applicable income and/or employment tax laws, or
as otherwise stated in documents granting rights that are affected by this
Agreement.
3.5 AMENDMENT, WAIVER. No provision of this Agreement may be modified,
amended or waived except by an instrument in writing signed by both parties.
3.6 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall at any time or to any
extent be invalid, illegal or unenforceable in any respect as written, Employee
and the Company intend for any court construing this Agreement to modify or
limit such provision so as to render it valid and enforceable to the fullest
extent allowed by law. Any such provision that is not susceptible of such
reformation shall be ignored so as to not affect any other term or provision
hereof, and the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid, illegal or unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
3.7 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
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3.8 REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be deemed to
be such party's exclusive remedy, and accordingly, in addition to all of the
rights and remedies provided for in this Agreement, the parties shall have all
other rights and remedies provided to them by applicable law, rule or
regulation.
3.9 COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and understands
that the Employee serves at the pleasure of the Board and that the Company has
the right at any time to terminate Employee's status as an employee of the
Company, or to change or diminish his status during the Employment Term, subject
to the rights of the Employee to claim the benefits conferred by this Agreement.
3.10 PRIOR CHANGE OF CONTROL AGREEMENT. Effective as of the Change of
Control Agreement Date, this Agreement supersedes any prior change of control
agreement between the Employee and the Company.
3.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
3.12 SECTION 409A OF THE INTERNAL REVENUE CODE. In the event that any of
the compensation or benefits payable to the Employee hereunder are considered to
be non-qualified deferred compensation under Section 409A of the Code ("Section
409A") and any regulations issued or to be issued by the Department of the
Treasury thereunder, the Company and the Employee shall negotiate in good faith
and agree to such amendments to this Agreement as they and their respective tax
counsel deem necessary to avoid the imposition of additional taxes and penalties
under Section 409A or such regulations, while preserving the economic benefits
intended to be conferred on the Employee by this Agreement.
IN WITNESS WHEREOF, the Company and the Employee have caused this Amended
and Restated Agreement to be executed on the dates set forth below and effective
as of the Amendment Date.
XXXXXXX ENTERPRISES, INC.
Dated: November 8, 2006 By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. XxXxxxxxx
Compensation Committee Chairman
EMPLOYEE:
Dated: November 8, 2006 /s/ XXXXXX X. KITCHEN
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Xxxxxx X. Kitchen
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