EXHIBIT 10.30
EMPLOYMENT AND SEVERANCE AGREEMENT
AGREEMENT made as of March 5, 2001 between XXXXXXX ENTERPRISES, INC., a
Delaware corporation (the "Company"), and XXXXX X. XXXXXXXX (the "Executive").
WHEREAS, Executive is currently employed by the Company; and
WHEREAS, in connection with this Agreement and in exchange for the
consideration described herein (the receipt and sufficiency of which is hereby
acknowledged), the Executive has agreed to waive any rights he may currently
have under the Employment Contract dated August 22, 1997 and any change in
control, severance, or employment agreement or other compensation or employee
benefit plan with or previously assumed by the Company and has agreed to waive
any claim that any previous sale, transfer of assets, acquisition, spin-off,
merger, restructuring, reorganization, or any other corporate transaction
constitutes a "Change in Control" or "Termination of Employment for Good Reason"
under any such agreements or other employee benefit or compensation plans with
the Company or its predecessors except as set forth herein; and
WHEREAS, it is the intent of the parties that all the terms of the
Employment Contract dated August 22, 1997 shall be superceded by this Agreement
and the rights and obligations of the parties shall be governed by this
Agreement as of its Effective Date; and
WHEREAS, the Company desires to assure itself of the management
services of the Executive by directly engaging the Executive as the Executive
Vice President - Procurement of the Company; and
WHEREAS, the Company recognizes that the Executive's contribution to
the Company's growth and success will be substantial; and
WHEREAS, the Company wishes to encourage the Executive to remain with
and devote full time and attention to the business affairs of the Company and
wishes to provide income protection to the Executive for a period of time in the
event of an involuntary Termination of Employment without Cause or a voluntary
Termination of Employment for Specific Reason, whether or not in connection with
a Change in Control;
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the Company and the
Executive hereby agrees as follows:
1. Definitions.
(a) "Base Salary" shall mean the Executive's regular annual rate
of base pay, as set forth in Paragraph 4(a), as of the date in question.
(b) The "Benefit Multiplier" shall be equal to 2.0, except that
if Executive's Termination of Employment is pursuant to Paragraph 7(b), it
shall be equal to 3.0.
(c) The "Benefit Period" shall be the period of years equal to
the Benefit Multiplier which follows the Executive's Termination of
Employment.
(d) "Cause" shall mean the Executive's (i) conviction of a crime
involving moral turpitude or theft or embezzlement of property from the
Company or (ii) willful misconduct or willful failure substantially to
perform the duties of his position, but only if such has continued after
receipt of notice from the Company's Board of Directors and such reasonable
cure period as is set forth in such notice.
(e) A "Change in Control" shall be deemed to have taken place if:
(i) any person, corporation, or other entity or group, including any
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of
1934, other than any employee benefit plan then maintained by the Company,
becomes the beneficial owner of shares of the Company having 30 percent or
more of the total number of votes that may be cast for the election of
Directors of the Company; (ii) as the result of, or in connection with, any
contested election for the Board of Directors of the of the Company, or any
tender or exchange offer, merger or other business combination or sale of
assets, or any combination of the foregoing (a "Transaction"), the persons
who were Directors of the Company before the Transaction shall cease to
constitute a majority of the Board of Directors of the Company or any
successor to the Company or its assets or (iii) at any time (a) the Company
shall consolidate with, or merge with, any other Person and the Company
shall not be continuing or surviving corporation, (b) any Person shall
consolidate with, or merge with the Company, and the Company shall be the
continuing or surviving corporation and in connection therewith, all or
part of the outstanding Company stock shall be changed into or exchanged
for stock or other securities of any other Person or cash or any other
property, (c) the Company shall be a party to a statutory share exchange
with any other Person after which the Company is a subsidiary of any other
Person, or (d) the Company shall sell or otherwise transfer 50% or more of
the assets of earning power of the Company and its subsidiaries (taken as a
whole) to any Person or Person; provided, however, that notwithstanding
anything to the contrary herein, a Change in Control shall not include any
transfer to a consolidated --- subsidiary, reorganization, spin-off,
split-up, distribution, or other similar or related transaction(s) or any
combination of the foregoing in which the core business and assets of the
Company and its subsidiaries (taken as a whole) are transferred to another
entity ("Controlled") with respect to which (1) the majority of the Board
of Directors of the Company (as constituted) immediately prior to such
transaction(s)) also serve as directors of Controlled and immediately after
such transaction(s) constitute a majority of Controlled's board of
directors, and (2) more than 70% of the shareholders of the Company
(immediately prior to such transaction(s)) become shareholders of other
owners of Controlled and immediately after the transaction(s) control more
than 70% of the ownership and voting rights of Controlled.
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(f) The "Change in Control Date" shall mean the date immediately
prior to the effectiveness of the Change in Control.
(g) The "Committee" shall mean the Compensation Committee of the
Company's Board of Directors.
(h) The "Competitive Businesses" shall mean any of the health
care businesses in which the Company is engaged on the effective date of
the Distribution. Executive's serving on the Board of Directors of Capstone
is specifically excluded from the definition of competitive businesses.
(i) "Effective Date" shall mean the date first written above.
(j) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Securities Exchange Act of 1934 and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in Section 13(d).
(k) "Target Bonus" shall mean the target bonus (100% level)
established for the Executive for the year in question under the Company's
"Annual Incentive Plan."
(l) "Termination of Employment" shall mean the termination of the
Executive's employment by the Company other than such a termination in
connection with an offer of immediate reemployment by a successor or assign
of the Company or purchaser of the Company or its assets under terms and
conditions which would not permit the Executive to terminate his employment
for Specific Reason.
(m) "Specific Reason" shall mean Termination of Employment
triggered by Executive at any time by giving written notice of intent to
terminate employment to Company's Secretary. Company and Executive
recognize and agree that the Company's reorganization in January, 2001
created a right for Executive to terminate his employment for "Good Reason"
under his Employment Contract dated August 22, 1997 which entitled
Executive to receive severance benefits. Because Executive has elected to
continue his employment with the Company notwithstanding his entitlement to
severance benefits under his August 22, 1997 Employment Contract, Company
agrees that Executive will receive the benefits described in this Agreement
at such time as he triggers Termination of Employment for "Specific
Reason".
2. Term. The initial term of this Agreement shall be for the period
commencing on the Effective Date and ending on the third anniversary of the
Effective Date. The renewal Term shall be automatically extended by one
additional day for each day beyond the Effective Date of this Agreement that the
Executive remains employed by the Company until such time as the Company elects
to cease such extension by giving ninety (90) days written notice to the
Executive. In such event, the Agreement shall thus terminate at the end of such
notice period.
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3. Position and Duties. During the Term, the Executive shall serve, as
an employee, as the Executive Vice President - Procurement, Facilities
Management, and Joint Venture of Japan and Chile, of the Company and shall have
such duties, functions, responsibilities and authority as are consistent with
the Executive's position as the senior executive officer in charge of
procurement, facilities management, and joint venture of Japan and Chile,for the
Company.
4. Compensation and Related Matters.
(a) Annual Base Salary. The Executive shall receive a Base Salary
at a rate of $343,990 per annum through December 31, 2001 and thereafter at
any such greater rate as is determined by the Committee.
(b) Benefits. During the Term, the Executive shall be entitled to
all of the following and any other benefits and prerequisites offered by
the Company to executives generally:
(i) Participate in the Company's present and future
Long-Term Incentive Stock Plan and any other stock option,
restricted stock, phantom stock and other similar equity-based
incentive plans, pursuant to their terms.
(ii) Participate in the Company's Employee Stock Purchase
Plan, pursuant to its terms;
(iii) Participate in the Company's Executive Deferred
Compensation Plan, pursuant to its terms;
(iv) Participate in the Company's Executive SavingsPlus
Plan, pursuant to its terms;
(v) $300,000 of individual life insurance coverage under the
Company's Executive Split Dollar Life Insurance Plan;
(vi) $336,000 (or such greater amount as the Company may
make available to its senior executives generally) of group term
life insurance coverage;
(vii) $100,000 (or such greater amount as the Company may
make available to its senior executives generally) of business
travel accident insurance coverage when traveling on Company
business;
(viii) Participate in the Company's Medical Plan, and Dental
Plan, pursuant to their terms, except that the premium cost for
such shall be treated as a benefit under the Company's Executive
Medical Reimbursement Plan;
(ix) Participate in the Company's Executive Medical
Reimbursement Plan (with a maximum benefit of $5,000 (or such
greater or lesser
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amount as the Company may make available to its senior executives
generally), a portion of which shall be deemed applied to the
payment of premiums under the Company's Medical Plan and Dental
Plan as described above), pursuant to its terms;
(x) Participate in the Company's group Long-Term Disability
Plan, at the maximum benefit level, pursuant to its terms, and
participate in the Company's Supplemental Long-Term Disability
Plan, according to its terms;
(xi) 4 weeks of paid vacation;
(xii) Participate in or receive benefits under any other
employee benefit plan or other arrangement made available by the
Company to any of its employees, subject to and on a basis
consistent with the terms, conditions and overall administration
of such plan or arrangement.
(c) Annual Bonus. As additional compensation for services
rendered, the Executive shall be eligible to receive an annual bonus in
cash pursuant to the Company's Annual Incentive Plan.
(d) Expenses. The Company shall promptly reimburse the Executive
for all reasonable travel and other business expenses incurred by the
Executive in the performance of his duties to the Company hereunder.
(e) Reporting. The Executive shall report directly to the
President and Chief Executive Officer of the Company.
5. Non-Solicitation.
(a) Executive shall not at any time during the period of his
employment with the Company, or during the two (2) year period immediately
following his Termination of Employment with the Company ("Non-Solicitation
Period"), without the prior written consent of the Company, on behalf of
himself or any other person, solicit for employment or employ any of the
current officers or employees of the Company; provided, however, that
nothing contained herein shall prohibit Executive from hiring employees of
the Company when such employment results from general solicitations for
employment.
(b) Executive shall not at any time during the period of his
employment with the Company, or during the Non-Solicitation Period, without
the prior written consent of the Company, solicit for his own use, or for
the use of any company or person by whom he is employed, or for whom he may
be acting, any of the current customers of the Company, nor shall he
divulge to any other person any information or fact relating to the
management, business (including prospective business), finances, its
customers or the terms of any of the contracts of the Company which has
heretofore or which may hereafter come to the knowledge of Executive which
is not freely available to the public.
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(c) Executive shall not, during the Non-Solicitation Period, in
any way defame the Company or disparage its business capabilities,
products, plans or management to any customer, potential customer, vendor,
supplier, contractor, subcontractor of the Company so as to affect
adversely the goodwill or business of the Company.
(d) Executive covenants and agrees that a breach of these
subparagraphs (a), (b) or (c) would immediately and irreparably harm the
Company and that a remedy at law would be inadequate to compensate the
Company for its losses by reason of such breach and therefore that the
Company shall, in addition to any rights and remedies available under this
Agreement, at law or otherwise, be entitled to any injunction to be issued
by any court of competent jurisdiction enjoining and restraining Executive
from committing any violation of these subparagraphs (a), (b) or (c), and
Executive hereby consent to the issuance of such injunction.
(e) For purposes of this Paragraph 5 and in consideration of this
Agreement, this non-solicitation agreement has been separately negotiated
and bargained for, and constitutes a substantial portion of the
consideration for this Agreement.
6. Non-disclosure of Proprietary Information, Surrender of Records;
Inventions and Patents.
(a) Proprietary Information. Executive shall not during the term
of employment or at any time thereafter (irrespective of the circumstances
under which Executive's employment terminates), directly or indirectly use
for his own purpose or for the benefit of any person or entity other than
Company, nor otherwise disclose, any proprietary information, as defined
below, to any individual or entity, unless such disclosure has been
authorized in writing by the Company or is otherwise required by law. For
purposes of this Agreement, the term "proprietary information" shall
include, but is not limited to: (a) the name or address of any client or
affiliate of Company or any information concerning the transactions or
relations of any client or affiliate of Company with Company or any of its
shareholders; (b) any information concerning any product, service,
methodology, analysis, presentation, technology or procedure employed by
Company but not generally known to its clients or competitors, or under
development by or being tested by Company but not at the time offered
generally to clients; (c) any information relating to Company's computer
software, computer systems, pricing or marketing methods, capital
structure, operating results, borrowing arrangements or business plans; (d)
any information which is generally regarded as confidential or proprietary
in any line of business engaged in by Company; (e) any information
contained in any of Company's written or oral policies and procedures or
employee manuals; (f) any information belonging to clients or affiliates of
Company which Company has agreed to hold in confidence; (g) any inventions,
innovations or improvements covered by subparagraph 6(c) below; (h) any
other information which Company has reasonably determined to be
confidential or proprietary; and (i) all written, graphic, electronic and
other material relating to any of the foregoing. Information that is not
novel or copyrighted or patented may nonetheless be proprietary
information. Proprietary information, however, shall not include any
information that is or becomes
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generally known, or is readily accessible through public means, to the
industries in which Company competes through sources independent of Company
or Executive or through authorized publication by Company to persons other
than Company's employees.
(b) Confidentiality and Surrender of Records. Executive shall not
during the term of employment or at any time thereafter (irrespective of
the circumstances under which Executive's employment terminates), except as
required by law, directly or indirectly give or disclose any "confidential
records" (as hereinafter defined) to, or permit any inspection of copying
of confidential records by, any individual or entity other than in the
ordinary course and scope of such individual's or entity's employment or
retention by Company, nor shall he use or retain any of the same following
termination of his employment. Executive shall promptly return to Company
all "confidential records" upon the termination of Executive's employment
with Company. For purposes hereof, "confidential records" means all
correspondence, memoranda, files, analyses, studies, reports, notes,
documents, manuals, books, lists, financial, operating or marketing
records, computer software, magnetic tape, or electronic or other media or
equipment of any kind which may be in Executive's possession or under his
control or accessible to him which contain any proprietary information as
defined in subparagraph 6(a) above. All confidential records shall be and
remain the sole property of Company during the term of employment and
thereafter.
(c) Inventions, Patents, and Copyrights. All inventions,
innovations or improvements in Company's method of conducting its business
(including policies, procedures, products, improvements, software, ideas
and discoveries, whether or not patentable or copyrightable) conceived or
made by Executive, either alone or jointly with others, during the term of
employment belong to Company. Executive will promptly disclose in writing
such inventions, innovations or improvements to Company and perform all
actions reasonably requested by Company to establish and confirm such
ownership by Company, including, but not limited to, cooperating with and
assisting Company in obtaining patents and copyrights for Company in the
United States and in foreign countries. Any patent or copyright application
filed by Executive within a year after termination of his employment
hereunder shall be presumed to relate to an invention or work of authorship
which was made during the term of employment unless Executive can provide
conclusive evidence to the contrary.
7. Eligibility for Severance Benefits. The Executive shall be eligible
for the benefits described in Paragraph 8 (the "Severance Benefits") if:
(a) during the Term, the Executive has a Termination of
Employment initiated (i) by the Company without Cause (this shall include a
unilateral determination by the Chief Executive Officer, that he wishes to
terminate Executive without Cause, which shall be given to Executive in
writing) or (ii) by the Executive for Specific Reason, and subparagraph (b)
does not apply,
(b) during the Term either (i) there has been a Change in Control
and during the two year period commencing on the Change in Control Date the
Executive has a Termination of Employment which is initiated by the Company
without Cause or by the
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Executive for Specific Reason, or (ii) the Executive has a Termination of
Employment initiated by the Company without Cause or by the Executive for
Specific Reason following the commencement of any discussion with a third
person that ultimately results in a Change in Control with such third
person within 12 months of the commencement of such discussions (in which
case, the date of such discussion shall be substituted for the Change in
Control Date wherever appropriate, including in the definition of "Specific
Reason" and in Paragraph 8 hereof).
8. Severance Benefit. Upon satisfaction of the requirements set forth
in Paragraph 7, and subject to Paragraphs 9 and 12, the Executive shall be
entitled to the following Severance Benefits:
(a) Cash Payment. In the event of a Termination of Employment
under Paragraph 7 (a), the Executive shall be entitled to receive an amount
of cash equal to the Benefit Multiplier times:
(i) the sum of the Executive's Base Salary as in effect upon
the Termination of Employment, and the greater of
(A) the Executive's Target Bonus as in effect upon the
Termination of Employment or,
(B) the Executive's actual bonus under the Company's
"Annual Incentive Plan" for the year prior to the year of
the Executive's Termination of Employment; or
(b) Cash Payment. In the event of a Termination of Employment
under Paragraph 7 (b), the Executive shall be entitled to receive an amount
of cash equal to the Benefit Multiplier times:
(i) the sum of the Executive's Base Salary as in effect on
the Change in Control Date, and the greater of
(A) the Executive's Target Bonus as in effect upon the
Change in Control Date or,
(B) the Executive's actual bonus under the Company's
"Annual Incentive Plan" for the year prior to the Change in
Control Date.
The payment shall be made in a single lump sum within ten days following the
Executive's Termination of Employment.
(c) Long-Term Incentive Award; Equity-Based Compensation.
(i) In the event the Executive's Termination of Employment
arises under Paragraph 7(a), the Executive's interest in any
outstanding and unvested shares of Restricted Stock awarded under
any of the Company's Long-Term Incentive Plan(s) shall vest in
equal one-third (1/3) amounts beginning on
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the date of Termination of Employment and continuing on each of
the next two (2) annual anniversary dates from the date of
Termination of Employment and any unvested stock options shall be
fully vested on the date of Termination of Employment,
notwithstanding any restricted stock or stock option agreement to
the contrary; or
(ii) In the event the Executive's Termination of Employment
arises under Paragraph 7(b), the Executive's interest under all
of the Company's long-term incentive plans shall be fully vested.
Any and all (i) options to purchase Company stock and (ii)
restricted stock of the Company, owned by the Executive shall be
fully vested.
(d) Continuation of Benefits.
(i) For the Benefit Period, the Executive shall be treated
as if he had continued to be an executive employee for all
purposes under the Company's Medical Plan, Executive Medical
Reimbursement Plan and Dental Plan, as described in Paragraph
4(b). Following this period, the Executive shall be entitled to
receive continuation coverage under Part Six of Title I of ERISA
("COBRA Benefits") treating the end of this period as a
termination of the Executive's employment (other than for gross
misconduct).
(ii) The Company shall fully vest and maintain in force, at
its own expense, for the remainder of the Executive's life, the
life insurance in effect under the Company's Executive Split
Dollar Life Insurance Plan (as described in Paragraph 4(b)) as of
the Change in Control Date or as of the date of Termination of
Employment, whichever is greater.
(e) Relocation Benefit. If, within two (2) years after the
Executive's Termination of Employment with the Company, the Executive gives
the Company written notice that he desires to relocate within the
continental United States, the Company will reimburse the Executive for any
reasonable relocation expenses (in accordance with the Company's general
relocation policy for executives as then in effect, or, at the Executive's
election, as in effect on the Change in Control Date) in connection with
such relocation.
(f) Executive SavingsPlus Plan. For the year of the Executive's
Termination of Employment, the Company will make the contribution to the
Executive SavingsPlus Plan on behalf of the Executive that it would have
made if the Executive had not had a Termination of Employment, but in no
event less than the percentage contribution it made for the Executive in
the immediately preceding year (and increased to take account of the
additional year of Service), in each case taking account of the Executive's
annualized rate of "Compensation" (as defined in the Executive SavingsPlus
Plan) and the percentage of such Compensation that the Executive is
contributing to the Executive SavingsPlus Plan) and the percentage of such
Compensation that the Executive is contributing to the Executive
SavingsPlus Plan, as of the date of Termination of Employment, and the
Company's matching contribution rate for such year (or, if greater,
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the preceding year). The portion of the Company's matching contribution
which is based on the preceding year's contribution percentage shall be
contributed to the Executive SavingsPlus Plan on behalf of the Executive
immediately upon the Executive's Termination of Employment and any
additional contribution required shall be paid as soon as the amount is
determined.
(g) Executive Deferred Compensation Plan. For the year of the
Executive's Termination of Employment, the Company will make the
contribution to its Executive Deferred Compensation Plan (the "EDC Plan")
that it would have made if the Executive had not had a Termination of
Employment determined based on the Executive's deferral for such year. At
Executive's election, the Company contribution shall be paid to the
Executive immediately upon his Termination of Employment.
(h) Disability. For the Benefit Period, the Company shall provide
long-term disability insurance benefits coverage to Executive equivalent to
the coverage that the Executive would have had had he remained employed
under the Company's Long-Term Disability Plan and Supplemental Long-Term
Disability Plan as described in Paragraph 4(b) applicable to Executive on
the date of Termination of Employment, or, at the Executive's election, the
plan or plans applicable to Executive as of the Change in Control Date.
Should Executive become disabled during such period, Executive shall be
entitled to receive such benefits, and for such duration, as the applicable
plan(s) provide.
(i) Plan Amendments. The Company shall adopt such amendments to
its employee benefit plans and insurance policies as are necessary to
effectuate the provisions of this Agreement. If and to the extent any
benefits under this Paragraph 7 are not paid or payable or otherwise
provided to the Executive or his dependents or beneficiaries under any such
plan or policy (whether due to the terms of the plan or policy, the
termination thereof, applicable law, or otherwise), then the Company itself
shall pay or provide for such benefits.
9. Golden Parachute Gross-Up. If, in the written opinion of a Big 6
accounting firm engaged by either the Company or the Executive for this purpose
(at the Company's expense), or if so alleged by the Internal Revenue Service,
the aggregate of the benefit payments under Paragraph 8 would cause the payment
of one or more of such benefits to constitute an "excess parachute payment" as
defined in Section 280G(b) of the Internal Revenue Code ("Code"), then the
Company will pay to the Executive an additional amount in cash (the "Gross-Up
Payment") equal to the amount necessary to cause the net amount retained by the
Executive, after deduction of any (i) excise tax on payments under Paragraph 8,
(ii) federal, state or local income tax on the Gross-Up Payment, and (iii)
excise tax on the Gross-Up Payment, to be equal to the aggregate remuneration
the Executive would have received under Paragraph 8, excluding such Gross-Up
Payment (net of all federal, state and local excise and income taxes), as if
Sections 280G and 4999 of the Code (and any successor provisions thereto) had
not been enacted into law. The Gross-Up Payment provided for in this Paragraph
shall be made within ten (10) days after the termination of Executive's
employment, provided however, that if the amount of the payment cannot be
finally determined at the time, the Company shall pay to Executive an estimate
as determined in good faith by the Company of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as
the
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amount thereof can be determined but in no event later than the thirtieth (30th)
day after the date of termination. Any dispute concerning the application of
this Paragraph shall be resolved pursuant to Paragraph 11, and if Paragraph 12
applies, any reference in this Paragraph to Paragraph 8 shall also be deemed to
include a reference to Paragraph 12 as well.
10. Waiver and Release of Other Severance Benefits. The benefits
payable pursuant to this Agreement are in lieu of any other severance benefits
which may otherwise be payable to the Executive upon termination of employment
with the Company, whether or not in connection with a Change in Control
(including, without limitation, any benefits to which Executive might otherwise
have been entitled under any employment, change in control, or severance
agreement or other compensation or employee benefit plan to which the Company
was a party or which was assumed by the Company), except those benefits which
are to be made available to the Executive as required by applicable law.
Specifically, Executive waives and releases any claims Executive may have under
the Employment Contract dated August 22, 1997 for any severance benefits
including but not limited to the immediate vesting of any shares of Restricted
Stock held by Executive.
11. Disputes. Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election and upon
written demand of either party, be finally determined and settled by binding
arbitration in the city of Fort Xxxxx, Arkansas, using a single arbitrator, in
accordance with the Labor Arbitration rules and procedures of the American
Arbitration Association, and judgment upon the award may be entered in any court
having jurisdiction thereof. The arbitrator shall have the power to order
specific performance, mandamus, or other appropriate legal or equitable relief
to enforce the provisions of this Agreement. The Company shall pay all costs of
the arbitration and all reasonable attorney's and accountant's fees of the
Executive in connection therewith.
12. Additional Payments Due to Dispute. Notwithstanding anything to the
contrary herein, and without limiting the Executive's rights at law or in
equity, if the Company fails or refuses to timely pay to the Executive the
benefits due under Paragraphs 8 and/or 9 hereof, then the benefits under
Paragraph 8(a) shall be increased and the benefits under Paragraphs 8(c), 8(d),
and 8(g) shall each be continued by one additional day for each day of any such
failure or refusal of the Company to pay. In addition, any Gross-Up Payment due
under Paragraph 9 shall be increased to take in to account any increased
benefits under this Paragraph.
13. No Set-Off. There shall be no right of set-off or counterclaim in
respect of any claim, debt, or obligation against any payment to or benefit for
the Executive provided for in this Agreement.
14. No Mitigation Obligation. The parties hereto expressly agree that
the payment of the benefits by the Company to the Executive in accordance with
the terms of this Agreement will be liquidated damages, and that the Executive
shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor shall any profits,
income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise.
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15. Successors: Binding Agreement.
(a) This Agreement shall not be terminated by the voluntary or
involuntary dissolution of the Company or by any merger or consolidation
where the Company is not the surviving corporation, or upon any transfer of
all or substantially all of the Company's assets, or any other Change in
Control. The Company shall require any purchaser, assign, surviving
corporation or successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place.
This Agreement shall be binding upon and insure to the benefit of the
Company and any purchaser, assign, surviving corporation or successor to
the Company, including without limitation any persons acquiring directly or
indirectly all or substantially all of the business and/or assets of the
Company whether by purchase, merger, consolidation, reorganization,
transfer of all of substantially all of the business or assets of the
Company, or otherwise (and such purchaser, assign, surviving corporation or
successor shall thereafter be deemed the "Company" for the purposes of this
Agreement), but this Agreement shall not otherwise be assignable,
transferable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and/or legatees.
(c) This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in this Paragraph 15. Without limiting the generality of
the foregoing, the Executive's right to receive payments hereunder shall
not be assignable, transferable or delegable, whether by pledge, creation
of a security interest or otherwise, or otherwise subject to anticipation,
alienation, sale encumbrance, charge, hypothecation, or set-off in respect
of any claims, debt, or obligation, or to execution, attachment, levy or
similar process, or assignment by operation of law, other than by a
transfer by his will or by the laws of descent and distribution. Any
attempt, voluntary or involuntarily, to effect any action prohibited by
this Paragraph shall be null, void, and of no effect.
16. Notices. Any notice, request, claim, demand, document and other
communication hereunder to any party shall be effective upon receipt (or refusal
of receipt) and shall be writing and delivered personally or sent by telex,
telecopy, or certified or registered mail, postage prepaid, or other similar
means of communication, as follows:
(a) If to the Company, addressed to its principal executive
offices to the attention of its Secretary;
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(b) If to the Executive, to him at the address set forth below
under the Executive's signature, or at any such other address as either
party shall have specified by notice in writing to the other.
17. Amendments: Waivers. This Agreement may not be modified, amended,
or terminated except by an instrument in writing, signed by the Executive and by
a duly authorized representative of the Board of Directors except as set forth
in Paragraph 2. By an instrument in writing similarly executed, either party may
waive compliance by the other party with any provision of this Agreement that
such other party was or is obligated to comply with or perform; provided,
however, that such waiver shall not operate as a waiver of, or estoppel with
respect to, any other or subsequent failure. No failure to exercise and no delay
in exercising any right, remedy, or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, or power provided herein or by law or in equity.
18. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto. The parties further
intend that this Agreement shall constitute the complete and exclusive statement
of its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding involving this Agreement.
19. Severability; Enforcement. If any provision of this Agreement, or
the application thereof to any person, place, or circumstance shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
20. Indemnification. Executive has entered into an Indemnification
Agreement dated January 16, 1991 which shall govern the rights and obligations
of the parties with respect to indemnification.
21. Governing Law. This Agreement shall be interpreted, administered
and enforced in accordance with the law of the State of Arkansas, except (i) to
the extent pre-empted by Federal law and (ii) Paragraph 20 which shall be
interpreted, administered and enforced in accordance with the law of the state
of Delaware.
22. Severance Agreement and Release. To obtain any severance benefits
under this Agreement, Executive agrees to execute the attached form of Severance
Agreement and Release of Claims within twenty-one (21) days of his Termination
of Employment unless he agrees to a shorter period of time for consideration of
the Severance Agreement and Release of Claims.
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The parties have duly executed this Agreement as of the date
first written above.
XXXXXXX ENTERPRISES, INC. EXECUTIVE
By:
------------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx
President and Chief Executive Officer 0000 Xxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
By:
-------------------------------------
Xxxxxxx X. Xxxx
Executive Vice President -
Law and Government Relations
and Secretary
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