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Exhibit 10.45
EMPLOYMENT AGREEMENT
LEXFORD, INC.
AND
XXXXXXX X. XXX XXXXX
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TABLE OF CONTENTS
Page
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1. Employment...........................................................1
2. Term and Positions...................................................2
3. Compensation.........................................................2
4. Insurance and Other Benefits.........................................8
5. Payment in the Event of Death or Permanent Disability...............10
6. Termination and Further Compensation................................11
7. Reimbursement.......................................................13
8. Covenants and Confidential Information..............................13
9. Withholding Taxes...................................................15
10. No Conflicting Agreement............................................15
11. Severable Provisions................................................15
12. Binding Agreement...................................................15
13. Arbitration.........................................................15
14. Notices.............................................................16
15. Waiver..............................................................16
16. Miscellaneous.......................................................16
17. Governing Law.......................................................16
18. Captions and Section Headings.......................................16
19. Miscellaneous.......................................................17
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 1st
day of January, 1998, between Lexford, Inc., an Ohio corporation ("Employer"),
and Xxxxxxx X. Xxx Xxxxx ("Employee").
WITNESSETH:
WHEREAS, Employer and Employee desire to enter into this Agreement to
assure Employer of the services of Employee, and Employee's employment for the
term set forth herein, and to set forth the rights and duties of the parties
hereto.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Employment.
(a) Employer hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions hereinafter set
forth.
(b) During the term of this Agreement, or any renewal or
extension hereof (for purposes hereof, all references herein to the
term of this Agreement shall be deemed to include references to the
period of renewal or extension hereof, if any), Employee shall devote
his full time to his employment and perform with reasonable diligence
such duties as are customarily performed by the Senior Vice President
and General Counsel or similar senior executive officer charged with
primary responsibility for legal, tax and related matters for a company
having the size and structure of Employer and its subsidiaries,
together with such other duties as may be reasonably requested from
time to time by the Board of Directors of Employer (the "Board"), which
duties shall be consistent with the further covenants set forth in
Section 2 of this Agreement.
(c) Employee shall not, without the prior written consent of
Employer, directly or indirectly, during the term of this Employment
Agreement, other than in the performance of duties naturally inherent
in the businesses of Employer or any subsidiary of Employer and in
furtherance thereof, render services of a business, professional or
commercial nature to any other person or firm, for compensation;
provided, however, that so long as it does not interfere with his
full-time employment hereunder, Employee may attend to his personal
outside investments, serve as a director of a corporation which does
not compete with Employer (as provided in Section 8 hereof), and serve
as director, trustee or officer of or otherwise participate in
educational, welfare, social, religious and civic organizations.
Employee may complete the performance of his professional engagements
as legal counsel which are pending on the date of this Agreement;
provided that any such performance does not interfere with the
performance of his employment duties hereunder. For purposes of this
Agreement, all references herein to subsidiaries and affiliates of
Employer shall be deemed to include subsidiaries and affiliates now or
hereafter existing.
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2. Term and Positions.
(a) Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall begin on January 1, 1998 and
shall continue through December 31, 1998 (the "Original Term"). The
Original Term may be extended for additional terms of one year each
(each, a "Renewal Term") upon the mutual agreement of Employer and
Employee.
(b) Employee shall, without any compensation in addition to
that which is specifically provided in this Agreement, serve as Senior
Vice President and General Counsel of Employer, and a member of the
board of directors and in such other offices or positions with any
subsidiary or affiliate of Employer as shall, from time to time, be
assigned reasonably by the Board (but such office or positions shall be
consistent with the duties, offices or positions hereinbefore named).
It is agreed that in addition to the provisions of Section 4(e) of this
Agreement and any other obligations due him hereunder, Employee shall
be entitled to the protection of the applicable indemnification
provisions of the Articles of Incorporation and Code of Regulations of
Employer and the corporate or partnership organizational documents of
any such subsidiary or affiliate. Employer will use all commercially
reasonable efforts to maintain its directors and officers liability
insurance for the benefit of, among others, Employee. For purposes of
this Agreement, the term: (i) "affiliate," when used with reference to
Employer, means any entity which, directly or indirectly through one or
more intermediaries, is controlled by, under common control with, or
which controls, Employer; (ii) "control" means (A) the power to direct
the management and policies of the entity in question, directly or
indirectly, whether through ownership of voting securities, by contract
or otherwise and (B) "controlled" and "controlling" have meanings
correlative to the foregoing; and (iii) "subsidiary" means, with
reference to Employer, any corporation, general or limited partnership,
limited liability company, association or other business entity (A) of
which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partners interests are, at the time any
determination is being made, owned, controlled or held by Employer or
(B) that, at the time any determination is being made, is otherwise
controlled, by Employer or one or more subsidiaries of Employer or by
Employer and one or more subsidiaries of Employer.
3. Compensation.
(a) For all services he may render to Employer (and any
subsidiary or affiliate) during the term of this Agreement, Employer
shall pay to Employee base compensation ("Base Compensation") on the
following terms:
(i) For the Original Term and any Renewal Term,
Fourteen Thousand Five Hundred Eighty-three and 33/100
Dollars ($14,583.33) per month.
(ii) Base Compensation payable to Employee under this
Section 3(a) shall be payable in semi-monthly installments.
(iii) Commencing January 1, 1999, Base Compensation may
be increased each fiscal year upon appropriate action by the
Board. If increased, such increased dollar amount shall
thereafter constitute "Base Compensation" for all purposes
under this Agreement.
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(b) Employer shall pay to Employee bonus compensation during
the term of this Agreement as follows:
(i) For Employer's 1998 fiscal year, and for each
fiscal year thereafter during which this Employment
Agreement remains in effect, Employer will pay to Employee a
cash bonus ("Cash Bonus") determined on the basis of the
increase, if any, of Employer's "Adjusted EBITDA" (as
defined in Employer's Annual Report on Form 10-K) when
compared to Employer's Adjusted EBITDA for fiscal year 1997,
as reported in Employer's Annual Report on Form 10-K to be
filed with the Securities and Exchange Commission
("Comparison EBITDA") and measured as a percentage of
Comparison EBITDA, as follows:
Adjusted EBITDA expressed as Cash Bonus Expressed as
Percentage of Comparison EBITDA Percentage as Base Compensation
------------------------------- -------------------------------
up to 103% 0
greater than 103% up to 110% Percentage Increase in Comparison EBITDA
multiplied by 1.5; plus, if applicable
greater than 110% up Additional Percentage Increase in
to 120% Comparison EBITDA (above 110%) multiplied
by 2; plus, if applicable
greater than 120% Additional Percentage Increase in
Comparison EBITDA (above 120%) multiplied
by 2.5, but not to exceed 60% of Base
Compensation
(ii) For purposes of determining the Cash Bonus, if
any, payable to Employee on account of Employer's 1998
fiscal year, Employee and Employer acknowledge and agree
that Employee's 1998 Base Compensation will equal One
Hundred Seventy Five Thousand Dollars ($175,000), and the
maximum Cash Bonus payable to Employee on account of
Employer's 1998 fiscal year equals One Hundred Five Thousand
Dollars ($105,000).
(iii) Employee's Cash Bonus due under subsections (i)
and (ii) above shall be paid within thirty (30) days after
Adjusted EBITDA is calculated from the applicable final
audited year end income statements of Employer.
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(iv) In addition to the Cash Bonus, for Employer's 1998
fiscal year, and for each fiscal year thereafter during
which this Employment Agreement remains in effect, Employer
shall, and hereby does, grant to Employee a stock bonus
("Stock Bonus"; and, together with the Cash Bonus, the
"Bonus") payable in shares of Employer's common stock,
without par value (the "Common Stock"), in accordance with
and subject to a Deferred Shares Award Agreement (the
"Deferred Shares Agreement") to be entered into between
Employer and Employee in customary form reasonably
acceptable to Employer and Employee. The dollar amount of
the Stock Bonus will be determined on the same basis as the
Cash Bonus (including the limitations set forth in Section
3(b)(ii) and the partial-year provision set forth in Section
6(c)), except that the dollar value of the Stock Bonus as a
percentage of Base Compensation will be as follows:
Dollar Value of Stock Bonus
Adjusted EBITDA expressed as Expressed as Percentage of Base
Percentage of Comparison EBITDA Compensation
------------------------------- ------------
up to 103% 0
greater than 103% up to 105% Equivalent to Percentage Increase in
Comparison EBITDA; plus, if applicable
greater than 105% up to 110% Additional Percentage Increase in
Comparison EBITDA (above 105%) multiplied
by 2; plus, if applicable
greater than 110% Additional Percentage Increase in
Comparison EBITDA (Above 110%) multiplied
by 3, but not to exceed 30% of Base
Compensation
(v) The number of shares constituting the Stock Bonus
payable to Employee will be determined by dividing (A) the
dollar value of the Stock Bonus determined in accordance
with the table above by (B) the closing price of Employer's
Common Stock on the Nasdaq National Market System, or if
Employer's Common Stock is not listed or admitted to trading
in such system, the principal securities exchange on which
Employer's Common Stock is listed or admitted to trading on
the last trading date in the period for which the Stock
Bonus is calculated (i.e. December 31, or the last closing
price for the Common Stock immediately preceding the date
Employee ceases employment with Employer). Any Stock Bonus
which Employee is entitled to receive from Employer shall be
issued on the same date as the Cash Bonus for the same
period. No fractional share shall be payable to Employee in
connection with the Stock Bonus, but Employee will be
entitled to a cash payment equal to the dollar value of any
fractional share to which he would otherwise be entitled
under the Stock Bonus, to be paid to Employee together with
the payment of Employee's Cash Bonus hereunder.
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(c) As additional inducement to Employee to enter into this
Agreement, Employer shall issue to The Provident Bank, a state
chartered bank, in its capacity as Trustee under that certain Executive
Deferred Compensation Rabbi Trust Agreement dated as of April 18, 1996
(the `Trust Agreement"), or any successor trustee thereunder
("Trustee"), for the benefit of Employee, at no additional
consideration or cost to Employee, up to two thousand five hundred
(2,500) shares of the Common Stock for each share of Common Stock of
Employer purchased by Employee from the date of this Agreement through
and including December 31, 1998 (the "Matching Stock"). Any Matching
Stock which Trustee is entitled to receive from Employer shall be
issued to Trustee within thirty (30) days of Employee's purchase of any
shares of Common Stock and shall be subject to all restrictions and
limitations imposed by applicable state and federal securities laws and
regulations.
(d) Further, Employer shall, and hereby does, grant to
Employee rights to receive additional shares of Common Stock pursuant
and subject to the terms and conditions of that certain Restricted
Shares Agreement (the "Restricted Shares Agreement") to be entered into
between Employer and Employee, in customary form reasonably acceptable
to Employer and Employee (such Common Stock to be referred to herein as
"Restricted Stock") as follows:
(i) sixteen thousand five hundred (16,500) shares of
Restricted Stock, one-third of which shall vest on each of
January 1, 1998, January 1, 1999, and January 1, 2000 if the
performance criteria as defined, and more particularly set
forth, in the applicable Restricted Shares Agreement have
been satisfied, which issuance of shares shall be made
effective on January 1, 1998. As used hereunder, the term
"vest" shall mean that Employee shall own the Restricted
Shares free from any restriction, encumbrance, or
limitation, except for any such restriction or limitation
imposed by applicable state and federal securities laws and
regulations and except for the terms of Employer's Executive
Deferred Compensation Plan and the terms of the Trust
Agreement;
(ii) Notwithstanding the foregoing, the vesting of all
Restricted Stock and Stock Options (as defined hereinbelow)
granted under this Agreement shall be accelerated in the
event of any of the following:
(A) Employer shall merge or be merged or
consolidated with, another corporation and as a result
of such merger or consolidation less than seventy
percent (70%) of the outstanding voting securities of
the surviving or resulting corporation shall be owned
in the aggregate by the former shareholders of Employer
as the same shall have existed immediately prior to
such merger or consolidation;
(B) Employer shall sell or transfer to one or
more persons, corporations or entities, in a single
transaction or a series of related transactions, more
than one-half of the assets of Employer unless by an
affirmative vote of two-thirds of the members of the
Board, the transaction or transactions are exempted
from the operation of this provision based on a good
faith finding that the transaction or transactions are
not within the intended scope of this definition for
purposes of this Agreement;
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(C) a person, within the meaning of Section
3(a)(9) or Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended and as in effect on the date
hereof the "Exchange Act"), shall become the beneficial
owner (as defined in Rule 13d-3 of the Exchange Act) of
thirty percent (30%) or more of the outstanding voting
securities of Employer; or
(D) any shareholder of Employer shall nominate a
person to the Board, which nominee shall be elected to
the Board without receiving the prior endorsement of
the Board or its Nominating Committee.
(e) Employer shall grant to Employee options to purchase two
thousand five hundred (2,500) shares of Employer's Common Stock ("Stock
Options") in accordance with, and subject to, the Employer's Amended
and Restated 1992 Incentive Equity Plan, and an Incentive Stock Option
Agreement to be entered into between Employer and Employee, in
customary form reasonably acceptable to Employer and Employee (the
"Option Award Agreement" and, together with the Deferred Shares
Agreement and the Restricted Shares Agreements, the "Award
Agreements"). The Stock Options shall have an exercise price equal to
the closing price of Employer's Common Stock on the NASDAQ National
Market System on December 31, 1997, one-fifth of which shall vest on
the first, second, third, fourth and fifth anniversaries of the date of
such grant, which grant shall be made pursuant to the Option Award
Agreement.
(f) Employee shall be entitled to participate in any pension
or profit-sharing plan covering highly compensated salaried employees
which the Employer may have in effect or hereafter adopt during the
term of this Employment Agreement.
(g) Employer represents and warrants to Employee that unless
Employee makes an election pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), Employee shall not have
any taxable income solely by reason of the grants described in Sections
3(c), (d) and (e) hereof. Employee understands that he will have
taxable income upon the vesting of Restricted Stock, the exercise of
the Stock Options, the disposition of the rights granted in Sections
3(c), (d) and (e) hereof, or other similar event.
(h) If Employee makes an election pursuant to Section 83(b) of
the Code in connection with Restricted Stock acquired by Employee
pursuant to Section 3(d) hereof, Employer shall make a loan to Employee
in an amount equal to forty-eight percent (48%) (subject to appropriate
adjustment if the combined effective federal, state, and local income
tax rate on compensation income changes in 1996) or any subsequent year
in which income may be recognized) of the compensation income
recognized by Employee for federal income tax purposes in connection
with such election. The loan shall (i) bear interest at a rate per
annum equal to that charged from time to time to Employer under
Employer's senior secured credit facility (which credit facility, as of
the date of this Agreement is provided to Employer by The Provident
Bank) plus two percent (2%), (ii) be
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secured by a pledge of the Restricted Stock, (iii) be due upon the
earliest of three (3) years from the date of the loan, the sale of the
Restricted Stock (to the extent of the proceeds of such sale with any
remaining balance being thereafter due as originally scheduled), or one
(1) year after Employee's termination of employment with Employer, and
(iv) be evidenced by a promissory note and a pledge agreement in
customary form reasonably acceptable to Employer and Employee.
(i) With respect to the Restricted Stock, if Employee does not
make an election pursuant to Section 83(b) of the Code as described in
Section 3(g) of this Agreement, and with respect to the Stock Options,
upon each occasion Employee recognizes compensation income, as a result
of the vesting of the Restricted Stock or the exercise of the Stock
Options, Employee may borrow from Employer an amount equal to
forty-eight percent (48%) (subject to adjustment as described in
Section 3(h) of this Agreement) of the compensation income so
recognized by Employee, provided that Employee is still employed by
Employer. The loan shall have the same terms and conditions described
in Section 3(h) of this Agreement.
4. Insurance and Other Benefits.
(a) Employee shall be entitled to such medical,
hospitalization, health, accident, life and disability insurance and
pension plan benefits and such other similar employment privileges and
benefits as are afforded generally from time to time to other executive
officers of Employer, or subsidiaries of Employer, and in no event
shall Employee be provided benefits at a level less generous than those
benefits provided to any other officer or employee of Employer, or any
subsidiary of Employer. Further, with respect to medical coverage,
Employer shall provide medical coverage for Employee and his dependents
at least equal to the value of coverage afforded Employee on the
effective date of this Agreement if such coverage is available on
commercially reasonable terms.
(b) Employee shall be entitled to periods of vacation and sick
leave allowance each year, which shall be the same as provided under
Employer's vacation and sick leave policy for executive officers, but
in no event shall Employee be entitled to, with full pay and benefits,
less than four (4) weeks paid vacation and customary holidays.
(c) In the event that Employee moves his principal residence
to the Columbus, Ohio area on or before December 31, 1998, Employer
will pay Employee a lump sum of Sixty Thousand Dollars ($60,000),
"grossed up" for federal, state and local taxes, for relocation
expenses. Payment to Employee, if any, due under this Section 4(c) will
be payable on or before ten (10) days following the date upon which
Employee acquires title to his new principal residence in the Columbus,
Ohio area or enters into a binding lease agreement for a principal
residence in the Columbus, Ohio area. Employee shall bear sole
responsibility for documenting the deductibility of amounts paid
pursuant to this subsection if so required by the Internal Revenue
Service, but shall not be required to provide such documentation to
Employer unless Employer is required to produce same in connection with
an audit.
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(d) Employer shall indemnify, to the full extent then
permitted by law, Employee if he was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a member of the Board or an
officer or agent of Employer, or is or was serving at the request of
Employer as a director, trustee, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
Employer shall pay expenses, including reasonable attorney's fees,
incurred by Employee in defending any such action, suit or proceeding
as they are incurred, in advance of the final disposition thereof, and
may pay, in the same manner and to the full extent then permitted by
law, such expenses incurred by any other person. The indemnification
and payment of expenses provided hereby shall not be exclusive of, and
shall be in addition to, any other rights granted to Employee seeking
indemnification under any law, the Articles of Incorporation of
Employer, any agreement, vote of shareholders or disinterested members
of the Board, or otherwise, both as to action in official capacities
and as to action in another capacity while he is a member of the Board,
officer, employee or agent of Employer, and shall continue as to
Employee after he has ceased to be a member of the Board, trustee,
officer, employee or agent and shall inure to the benefit of the heirs,
executors, and administrators of Employee.
5. Payment in the Event of Death or Permanent Disability.
(a) In the event of Employee's death or Permanent Disability
(as defined hereinbelow) during the term of this Agreement, Employee or
his estate, as the case may be, shall be entitled to receive (i) an
amount equal to (A) the lesser of (x) any remaining Base Compensation
for the Original Term or any then current Renewal Term or (y) one year
of Base Compensation reduced by (B) any and all payments made to
Employee pursuant to any disability insurance policy maintained by
Employer for Employee's benefit pursuant to Section 4(a) of this
Agreement or otherwise (the "Disability Policy"), (ii) a pro rata
portion of the Bonus, if any, applicable to the fiscal year in which
such death or Permanent Disability occurs, as such bonuses are
determined under Section 3(b) of this Agreement, and (iii) any shares
of Restricted Stock and Stock Options that have vested in accordance
with the provisions of the Award Agreements. Such pro rata portion of
the Bonus shall be determined by a multiplying a fraction (the
numerator of which shall be the number of days in the applicable fiscal
year elapsed prior to the date of death or Permanent Disability, as the
case may be, and the denominator of which shall be three hundred
sixty-five (365)) by the amount of the Bonus that would have been
payable, if any, pursuant to such Section 3(b), if Employee had
remained employed under this Agreement for the entire applicable fiscal
year.
(b) Upon death or Permanent Disability of Employee, the Bonus,
if any, shall be paid when and as provided in Section 3(b) of this
Agreement. The other compensation to be paid pursuant to this Section 5
shall be paid, at the election of Employee or Employee's designated
beneficiary either (i) in two (2) equal annual installments paid within
the two (2) year period beginning on the date of such death or
Permanent Disability, as the case may be, or (ii) in one (1) lump sum
paid within ninety (90) days after the date of such death or Permanent
Disability, as the case may be.
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(c) Employee shall be entitled to no further compensation or
other benefits under this Agreement, except as to that portion of any
benefits accrued and earned by him hereunder up to and including the
date of such death or Permanent Disability.
(d) For purposes of this Section 5, Employee's Permanent
Disability shall be deemed to occur on the date after the first to
occur of (i) ninety (90) consecutive days, or (ii) one hundred eighty
(180) days cumulatively in any twelve (12) month period, of Employee's
inability to provide the services required hereunder of him due to
sickness or injury ("Permanent Disability").
6. Termination and Further Compensation.
(a) The employment of Employee under this Agreement, and the
term hereof, subject to Employee's rights set forth elsewhere herein,
may be terminated by Employer:
(i) on death or Permanent Disability of Employee, or
(ii) for cause at any time by action of the Board. For
purposes hereof, the term "cause" shall mean:
A. an intentional act of fraud, embezzlement, theft or
any other material violation of law in connection with
Employee's duties or in the course of his employment with
Employer;
B. intentional wrongful damage to material assets of
Employer;
C. intentional wrongful disclosure of material
confidential information of Employer;
D. intentional wrongful engagement in any competitive
activity which would constitute a material breach of the
duty of loyalty; or
E. breach of any material term of this Agreement.
No act, or failure, to act, on the part of Employee shall be
deemed "intentional", or provide the basis for termination for
cause, if it was due primarily to an error in judgment or
negligence without bad faith or reckless disregard, but shall be
deemed "intentional" only if done, or omitted to be done, by
Employee not in good faith and without reasonable belief that his
action or omission was in or not opposed to the best interest of
Employer. Failure to meet performance standards or objectives of
Employer shall not constitute cause for purposes hereof. Further,
in the event Employer terminates Employee for "cause", Employer
shall give Employee written notice as to the specific
circumstances giving rise to its decision to terminate Employee
for cause ("Notice"), and, Employee shall be given the
opportunity to respond, with counsel, to Employer's decision and
Employer's articulated circumstances, such responses shall be
before the Board of Directors of Employer and shall take place
within fourteen (14) days of Employer's Notice. Any termination
by reason of the foregoing shall not be in limitation of any
other right
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or remedy Employer may have under this Agreement or otherwise. On
any termination of this Agreement, Employee shall be deemed to
have resigned from all offices and directorships held by Employee
in Employer and any subsidiaries and affiliates of Employer.
(b) In the event of termination of this Agreement for any of
the reasons set forth in Section 6(a)(ii) hereof, Employee shall be
entitled to no further compensation or other benefits under this
Agreement, except as to (i) that portion of any unpaid Base
Compensation reduced by any and all payments made, or to be made, to
Employee pursuant to the Disability Policy and other benefits accrued
and earned by him hereunder up to and including the effective date of
such termination; and (ii) any of his shares of Restricted Stock and
Stock Options that have vested in accordance with the provisions of
Section 3(c) of this Agreement.
(c) In the event that Employee's employment is terminated
without cause during the Original Term of this Agreement or in the
event that the Original Term of this Agreement shall have expired and
shall not have been renewed and Employee thereupon ceases to be
employed by Employer, Employee shall be entitled to receive: (i) an
amount equal to his Base Compensation, and any other benefits due
Employee under Section 4 of this Agreement, payable for the then
unexpired portion of the Original Term, if any, plus the immediately
succeeding nine (9) months; (ii) the Bonus, if any, applicable to the
fiscal year in which such cessation of employment occurs, as such Bonus
is determined under Section 3(b) of this Agreement but on a prorated
basis calculated in the manner contemplated by Section 5(a) of this
Agreement; and (iii) all of his shares of Restricted Stock awarded
pursuant to Section 3(d)(i) of this Agreement (but not, however, any
shares of Restricted Stock awarded pursuant to Section 3(d)(ii) of this
Agreement which have not theretofore vested) and Stock Options
immediately fully vested, and otherwise free of any forfeiture
provisions or other restrictions imposed under the Award Agreements
except for any restrictions or limitations imposed by applicable state
and federal securities laws and regulations. In the event that
Employee's employment is terminated without cause during a Renewal
Term, Employee will be entitled to receive all of the compensation and
benefits provided for in the immediately preceding sentence; except
that Employee's Base Compensation will continue solely for the nine (9)
month period immediately following such termination, irrespective of
the originally scheduled duration of the then current Renewal Term.
Upon any such termination by Employer, other than for "cause",
Employee's obligations to Employer hereunder shall terminate.
7. Reimbursement. Employer shall reimburse Employee or provide him with
an expense allowance during the term of this Agreement, for travel,
entertainment and other expenses reasonably and necessarily incurred by Employee
in performing services hereunder or, generally, the promotion of Employer's
business. Employee shall furnish such documentation with respect to
reimbursement to be paid under this Section 7 as Employer shall reasonably
request.
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8. Covenants and Confidential Information.
(a) Employee acknowledges Employer's reliance and expectation of
Employee's continued commitment of performance of his duties and
responsibilities during the term of this Agreement. In light of such reliance
and expectation on the part of Employer, Employee agrees that during the period
beginning on the effective date of this Agreement and ending eighteen (18)
months after the termination of Employee's employment for cause or Employee's
resignation from employment with Employer, he shall not, directly or indirectly,
do or suffer any of the following:
(i) own, manage, control or participate in the ownership,
management, or control of, or be employed or engaged by or otherwise
affiliated or associated as a consultant, independent contractor or
otherwise with, any other corporation, partnership, proprietorship,
firm, association, or other business entity, or otherwise engage in
any business, which directly of indirectly acquires, or solicits to
acquire, property management agreements or any other service agreement
directly relating to any property with respect to which Employer or
any of its subsidiaries or affiliates has contracted to provide (or is
actively negotiating to provide) similar services on the date that
Employee's employment relationship with Employer is terminated
hereunder; provided, however, that the ownership of not more than one
percent (1%) of the stock of any publicly-traded corporation shall not
be deemed a violation of this covenant;
(ii) employ, assist in employing, or solicit for employment any
employee or officer of Employer or any of Employer's affiliates or
subsidiaries who was employed or retained at any time during the one
(1) year period preceding the date on which Employee's employment with
Employer is terminated;
(iii) induce any person who is an employee or officer of Employer
or any of Employer's affiliates or subsidiaries to terminate said
relationship in such a manner which is not in furtherance of
Employer's interest; or
(iv) except in performing services hereunder, disclose, divulge,
discuss, copy or otherwise use or suffer to be used in any manner, in
competition with, or contrary to the interests of, Employer or any of
Employer's affiliates or subsidiaries entities, the proprietary
customer lists, limited partner lists, research or data or other trade
secrets of Employer or any of Employer's affiliates or subsidiaries,
it being acknowledged by Employee that any such proprietary
information regarding the business of Employer and Employer's
affiliates or subsidiaries entities compiled or obtained by, or
furnished to, Employee while Employee shall have been employed by or
associated with Employer, and which has not been publicly disclosed by
Employer or which is otherwise not available in the public domain, is
confidential information and Employer's property.
(b) Employee expressly agrees and understands that the remedy at law
for any breach by him of this Section 8 will be inadequate and that the damages
flowing from such breach are not readily susceptible to being measured in
monetary terms. Accordingly, it is acknowledged that upon adequate proof of
Employee's violation of any legally enforceable
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provision of this Section 8, Employer shall be entitled to immediate
injunctive relief and may obtain a temporary order restraining any
threatened or further breach. Nothing in this Section 8 shall be deemed
to limit Employer's remedies at law or in equity for any breach by
Employee of any of the provisions of this Section 8 which may he
pursued or availed of by Employer.
(c) Employee has carefully considered the nature and extent of
the restrictions upon him and the rights and remedies conferred upon
Employer under this Section 8, and hereby acknowledges and agrees that
the same are reasonable in time and territory, are designed to
eliminate competition which otherwise would be unfair to Employer, do
not stifle the inherent skill and experience of Employee, would not
operate as a bar to Employee's sole means of support, are fully
required to protect the legitimate interests of Employer and do not
confer a benefit upon Employer disproportionate to the detriment to
Employee.
9. Withholding Taxes. All payments to Employee shall be subject to
withholding on account of federal, state and local taxes as required by law. Any
amounts remitted by Employer to the appropriate taxing authorities as taxes
withheld by Employer from Employee on income realized by Employee with respect
to the vesting of his shares of Restricted Stock shall reduce the amounts
payable by Employer to Employee by way of compensation or otherwise. If any
particular payment required hereunder is insufficient to provide the amount of
such taxes required to be withheld, Employer may withhold such taxes from any
other payment due Employee. In the event all cash payments due Employee are
insufficient to provide the required amount of such withholding taxes, Employee,
within thirty (30) days of written notice from Employer, shall pay to Employer
the amount of such withholding taxes in excess of all cash payments due Employee
at the time such withholding is required to be made by Employer, provided,
however, the foregoing shall not be deemed to limit Employee's right to receive
loans from Employer to fund income tax obligations as set forth in Section 3 of
this Agreement.
10. No Conflicting Agreement. The parties hereto represent and warrant
to each other that they are not a party to any agreement, contract or
understanding, whether employment or otherwise, which would restrict or would
prohibit them from undertaking or performing in accordance with the terms and
conditions of this Agreement. Employer represents and covenants that its
entering into this Agreement has been duly authorized and ratified, and that it
has full authority to consummate the undertakings set forth herein including,
without limitation, the grant of the Restricted Stock and Stock Options to
Employee.
11. Severable Provisions. The provisions of this Agreement are
severable and if any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions and any
partially unenforceable provision to the extent enforceable in any jurisdiction
shall, nevertheless, be binding and enforceable.
12. Binding Agreement. The rights and obligations of Employer under
this Agreement shall inure to the benefit of, and shall be binding upon,
Employer and its successors and assigns, and the rights and obligations (other
than obligations to perform services) of Employee under this Agreement shall
inure to the benefit of, and shall be binding upon, Employee and his heirs,
personal representatives and estate. Employer agrees and acknowledges that the
services Employee is providing Employer are personal to Employer, and Employer
shall not have the right to assign this Agreement without Employee's written
consent.
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13. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Rules of the American Arbitration Association then
pertaining in the City of Columbus, Ohio, and judgment upon the award rendered
by the Arbitrator or Arbitrators may be entered in any Court having jurisdiction
thereof. The Arbitrator or Arbitrators shall be deemed to possess the powers to
issue mandatory orders and restraining orders in connection with such
arbitration; provided, however, that nothing in this Section 13 shall be
construed so as to deny Employer the right and power to seek and obtain
injunctive relief in a court of equity for any breach or threatened breach of
Employee of any of his covenants contained in Section 8(a) of this Agreement.
14. Notices. Any notice to be given under this Agreement shall be
personally delivered in writing or shall have been deemed duly given when
received after it is posted in the United States mail, postage prepaid,
registered or certified, return receipt requested, and if mailed to Employer,
shall be addressed to its principal place of business, attention: Chief
Financial Officer, and if mailed to Employee, shall be addressed to him at his
home address last known on the records of Employer, or at such other address or
addresses as either Employer or Employee may hereafter designate in writing to
the other.
15. Waiver. The failure of either party to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
16. Miscellaneous. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally.
No modification, termination or attempted waiver shall be valid unless in
writing and signed by the party against whom the same it is sought to be
enforced.
17. Governing Law. This Agreement shall be governed by and construed
according to the laws of the State of Ohio.
18. Captions and Section Headings. Captions and section headings used
herein are for convenience and are not a part of this Agreement and shall not be
used in construing it.
19. Miscellaneous. Where necessary or appropriate to the meaning
hereof, the singular and plural shall be deemed to include each other, and the
masculine and neuter shall be deemed to include each other.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the day and year first set forth above.
"EMPLOYER"
ATTEST: LEXFORD, INC.
/s/ Xxxxx X. Xxxxxxxx By: /s/ XXXX X. XXXXXXXX
----------------------------- ------------------------------
Xxxx X. Xxxxxxxx
Executive Vice President and
/s/ Xxxxxxxxx Xxxxxxx Chief Financial Officer
-----------------------------
"EMPLOYEE"
/s/ Xxxxx X. Xxxxxxxx /s/ XXXXXXX X. XXX XXXXX
----------------------------- ------------------------------
Xxxxxxx X. Xxx Xxxxx
/s/ Xxxxxxxxx Xxxxxxx
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