EXHIBIT 10.31
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Please read this Agreement carefully. This Agreement describes the basic legal
and ethical responsibilities that you are required to observe as an executive
exposed to highly sensitive technology and strategic information. Consult with
your legal counsel if all the terms and provisions of this Agreement are not
fully understood by you.
THIS AGREEMENT is made effective as of the 1st day of October, 2001, by
and between XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the
"Company"), and W. Xxxxxxx Xxxxxxx (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to assure itself of the Executive's
continued employment in an executive capacity as the Company's Group Executive
and Senior Vice President, Finance; and
WHEREAS, the Executive desires to be employed by the Company on the
terms and conditions hereinafter set forth; and
WHEREAS, this Agreement amends and restates that certain Employment
Agreement entered into by Executive and the Company effective March 6, 2000, as
amended by that certain letter agreement dated November 8, 2000.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and conditions of
this Agreement, the Company shall employ the Executive during the Term (as
hereinafter defined) as its Group Executive and Senior Vice President, Finance.
The Executive shall report to the Office of the Chairman, which will comprise
the Chairman of the Board of Directors, the Chief Executive Officer, and the
President of the Company. The Executive accepts such employment and agrees to
devote his best efforts and entire business time, skill, labor, and attention to
the performance of such duties. During the Term, the Executive agrees to
promptly provide a description of any other commercial duties or pursuits
engaged in by the Executive to the Company's Board of Directors. If the Board of
Directors determines in good faith that such activities conflict with the
Executive's performance of his duties hereunder, the Executive shall promptly
cease such activities to the extent as directed by the Board of Directors. It is
acknowledged and agreed that such description shall be made regarding any such
activities in which the Executive owns more than 5% of the ownership of the
organization or which may be in violation of Section 5 hereof, and that the
failure of the Executive to provide any such description shall enable the
Company to terminate the Executive for Cause (as provided in Section 6(c)
hereof). The Company agrees to hold any such information provided by the
Executive confidential and not disclose the same to any person other than a
person to whom disclosure is reasonably necessary or appropriate in light of the
circumstances. In addition, the Executive agrees to serve without additional
compensation if elected or appointed to any office or position, including as a
director, of the Company or any subsidiary or affiliate of the Company;
provided, however, that the Executive shall be entitled to receive such benefits
and additional compensation, if any, that is paid to executive officers of the
Company in connection with such service.
Executive/Term Xxxxx Enterprises Inc. __________
Page Number 1 Initial
2. TERM. Subject to the terms and conditions of this Agreement,
including, but not limited to, the provisions for termination set forth in
Section 6 hereof, the employment of the Executive under this Agreement shall
commence on the effective date hereof and shall continue through and including
the close of business on the date set forth on Exhibit A attached hereto and
incorporated herein (such term shall herein be defined as the "Term"). Provided,
however, that the Term shall renew automatically for successive two (2) year
periods unless either party gives written notice of termination at least 60 days
before the end of the Term or renewal period, as applicable. The Executive
agrees that some portions of this Agreement, including Sections 4, 5, and 6
hereof, will remain in force after the termination of this Agreement.
3. COMPENSATION.
(a) Base Salary and Bonus. As compensation for the Executive's
services under this Agreement, the Executive shall receive and the Company shall
pay a weekly base salary set forth on Exhibit A. Such base salary may be
increased but not decreased during the Term in the Company's discretion based
upon the Executive's performance and any other factors the Company deems
relevant. Such base salary shall be payable in accordance with the policy then
prevailing for the Company's executives. In addition to such base salary, the
Executive shall be entitled during the Term to a performance bonus set forth on
Exhibit A and to participate in and receive payments from, at the Company's
election, other bonus and other incentive compensation plans, if any, as may be
adopted by the Company and made available to other similarly-situated executive
officers of the Company.
(b) Payments. All amounts paid pursuant to this Agreement shall be
subject to withholding or deduction by reason of the Federal Insurance
Contribution Act, federal income tax, state and local income tax, if any, and
comparable laws and regulations.
(c) Other Benefits. The Executive shall be reimbursed by the
Company for all reasonable and customary travel and other business expenses
incurred by the Executive in the performance of the Executive's duties hereunder
in accordance with the Company's standard policy regarding expense verification
practices. The Executive shall be entitled to that number of weeks paid vacation
per year that is available to other executive officers of the Company in
accordance with the Company's standard policy regarding vacations and such other
fringe benefits as may be set forth on Exhibit A and shall be eligible to
participate in such pension, life insurance, health insurance, disability
insurance, and other executive benefits plans, if any, which the Company may
from time to time make available to its similarly-situated executive officers
generally.
4. CONFIDENTIAL INFORMATION.
(a) The Executive has acquired and will acquire information and
knowledge respecting the intimate and confidential affairs of the Company,
including, without limitation, confidential information with respect to the
Company's technical data, research and development projects, methods, products,
software, financial data, business plans, financial plans, customer lists,
business methodology, processes, production methods and techniques, promotional
materials and information, and other similar matters treated by the Company as
confidential (the "Confidential Information"). Accordingly, the Executive
covenants and agrees that during the Executive's employment by the Company
(whether during the Term hereof or otherwise) and thereafter, the Executive
shall not, without the prior written consent of the Company, disclose to any
person, other than a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of the
Executive's duties hereunder, any Confidential Information obtained by the
Executive while in the employ of the Company.
(b) The Executive agrees that all memoranda; notes; records;
papers or other documents; computer disks; computer, video or audio tapes;
CD-ROMs; all other media and all copies thereof relating to the Company's
operations or business, some of which may be prepared by the Executive; and all
objects associated therewith in any way obtained by the Executive shall be the
Company's property. This shall
Executive/Term Xxxxx Enterprises Inc. __________
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W. Xxxxxxx Xxxxxxx
include, but is not limited to, documents; computer disks; computer, video and
audio tapes; CD-ROMs; all other media and objects concerning any technical data,
methods, products, software, research and development projects, financial data,
financial plans, business plans, customer lists, contracts, price lists,
manuals, mailing lists, advertising materials; and all other materials and
records of any kind that may be in the Executive's possession or under the
Executive's control. The Executive shall not, except for the Company's use, copy
or duplicate any of the aforementioned documents or objects, nor remove them
from the Company's facilities, nor use any information concerning them except
for the Company's benefit, either during the Executive's employment or
thereafter. The Executive covenants and agrees that the Executive will deliver
all of the aforementioned documents and objects, if any, that may be in the
Executive's possession to the Company upon termination of the Executive's
employment, or at any other time at the Company's request.
(c) In any action to enforce or challenge these Confidential
Information provisions, the prevailing party is entitled to recover its
reasonable attorney's fees and costs.
5. COVENANT NOT-TO-COMPETE AND NO SOLICITATION. Executive
recognizes that the Company is in the business of employing individuals to
provide specialized and technical services to the Company's Clients. The purpose
of these Covenant Not-to-Compete and No Solicitation provisions are to protect
the relationship which exists between the Company and its Client while Executive
is employed and after Executive leaves the employ of the Company. The
consideration for these Covenant Not-to-Compete and No Solicitation provisions
is the Executive's employment with the Company.
(a) Executive acknowledges the following:
(1) The Company expended considerable resources in
obtaining contracts with its Clients;
(2) The Company expended considerable resources to
recruit and hire employees who could perform services for its
Clients;
(3) Through his/her employ with the Company,
Executive will develop a substantial relationship with the
Company's existing or potential Clients;
(4) Executive will be exposed to valuable
confidential business information about the Company, its
Clients, and the Company's relationship with its Client;
(5) By providing services on behalf of the Company,
Executive will develop and enhance the valuable business
relationship between the Company and its Client;
(6) The relationship between the Company and its
Client depends on the quality and quantity of the services
Executive performs;
(7) Through employment with the Company, Executive
will increase his/her opportunity to work directly for the
Client or for a competitor of the Company; and
(8) The Company will suffer irreparable harm if
Executive breaches these Covenant Not-to-Compete and No
Solicitation provisions of this Agreement.
(b) Executive agrees that:
(1) The relationship between the Company and its
Client (developed and enhanced when the Executive performs
services on behalf of the Company) is a legitimate business
interest for the Company to protect;
Executive/Term Xxxxx Enterprises Inc. __________
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(2) The Company's legitimate business interest is
protected by the existence and enforcement of these Covenant
Not-to-Compete and No Solicitation provisions;
(3) The business relationship which is created or
exists between the Company and its Client, or the goodwill
resulting from it, is a business asset of the Company and not
the Executive; and
(4) Executive will not seek to take advantage of
opportunities which result from his/her employment with the
Company and that entering into the Agreement containing
Covenant Not-to-Compete and No Solicitation provisions is
reasonable to protect the Company's business relationship with
its Clients.
(c) Restrictions on Executive. During the term of this
Agreement and for a period of time set forth on Exhibit A after the
termination of this Agreement, for whatever reason, whether such
termination was by the Company or the Executive, voluntarily or
involuntarily, and whether with or without cause, Executive agrees that
he/she shall not, as a principal, employer, stockholder, partner,
agent, consultant, independent contractor, employee, or in any other
individual or representative capacity:
(1) Directly or indirectly engage in, continue in, or
carry on the business of the Company or any business
substantially similar thereto, including owning or controlling
any financial interest in any corporation, partnership, firm,
or other form of business organization which competes with or
is engaged in or carries on any aspect of such business or any
business substantially similar thereto;
(2) Consult with, advise, or assist in any way,
whether or not for consideration, any corporation,
partnership, firm, or other business organization which is
now, becomes, or may become a competitor of the Company in any
aspect of the Company's business during the Executive's
employment with the Company, including, but not limited to,
advertising or otherwise endorsing the products of any such
competitor or loaning money or rendering any other form of
financial assistance to or engaging in any form of transaction
whether or not on an arm's length basis with any such
competitor;
(3) Provide or attempt to provide or solicit the
opportunity to provide or advise others of the opportunity to
provide any services of the type Executive performed for the
Company or the Company's Clients (regardless of whether and
how such services are to be compensated, whether on a
salaried, time and materials, contingent compensation, or
other basis) to or for the benefit of any Client (i) to which
Executive has provided services in any capacity on behalf of
the Company, or (ii) to which Executive has been introduced to
or about which the Executive has received information through
the Company or through any Client from which Executive has
performed services in any capacity on behalf of the Company;
(4) Retain or attempt to retain, directly or
indirectly, for itself or any other party, the services of any
person, including any of the Company's employees, who were
providing services to or on behalf of the Company while
Executive was employed by the Company and to whom Executive
has been introduced or about whom Executive has received
information through Employer or through any Client for which
Executive has performed services in any capacity on behalf of
the Company;
(5) Engage in any practice, the purpose of which is
to evade the provisions of this Agreement or to commit any act
which is detrimental to the successful continuation of or
Executive/Term Xxxxx Enterprises Inc. __________
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which adversely affects the business or the Company; provided,
however, that the foregoing shall not preclude the Executive's
ownership of not more than 2% of the equity securities
registered under Section 12 of the Securities Exchange Act of
1934, as amended; or
(6) For purpose of these Covenant Not-to-Compete and
No Solicitation provisions, Client includes any subsidiaries,
affiliates, customers, and clients of the Company's Clients.
The Executive agrees that, for the purposes of Sections
5(c)(1), 5(c)(2) and 5(c)(4), the geographic scope of this
Covenant Not-to-Compete shall extend to the geographic area
that is within 50 miles of any of the Company's business
locations. For the purposes of Section 5(c)(3), the geographic
scope of this Covenant Not-to-Compete shall extend to the
geographic area where the Company's Clients conduct business
at any time during the Term of this Agreement. For purposes of
this Agreement, "Clients" means any person or entity to which
the Company provides or has provided within a period of one
(1) year prior to the Executive's termination of employment
labor, materials or services for the furtherance of such
entity's or person's business or any person or entity that
within such period of one (1) year the Company has pursued or
communicated with for the purpose of obtaining business for
the Company.
(d) Enforcement. These Covenant Not-to-Compete and No
Solicitation provisions shall be construed and enforced under the laws
of the State of Florida. In the event of any breach of this Covenant
Not-to-Compete, the Executive recognizes that the remedies at law will
be inadequate, and that in addition to any relief at law which may be
available to the Company for such violation or breach and regardless of
any other provision contained in this Agreement, the Company shall be
entitled to equitable remedies (including an injunction) and such other
relief as a court may grant after considering the intent of this
Section 5. It is further acknowledged and agreed that the existence of
any claim or cause of action on the part of the Executive against the
Company, whether arising from this Agreement or otherwise, shall in no
way constitute a defense to the enforcement of this Covenant
Not-to-Compete, and the duration of this Covenant Not-to-Compete shall
be extended in an amount which equals the time period during which the
Executive is or has been in violation of this Covenant Not-to-Compete.
In the event a court of competent jurisdiction determines that the
provisions of this Covenant Not-to-Compete are excessively broad as to
duration, geographic scope, prohibited activities or otherwise, the
parties agree that this covenant shall be reduced or curtailed to the
extent necessary to render it enforceable.
e) In an action to enforce or challenge these Covenant
Not-to-Compete and No Solicitation provisions, the prevailing party is
entitled to recover its reasonable attorney's fees and costs.
f) By signing this Agreement, the Executive acknowledges
that he/she understands the effects of these Covenant Not-to-Compete
and No Solicitation provisions and agrees to abide by them.
6. TERMINATION
(a) Death. The Executive's employment hereunder shall terminate
upon his death. The Company shall pay Executive's estate all accrued but unpaid
base salary and bonus and all accrued but unused vacation time through the date
of death.
(b) Disability. If during the Term the Executive becomes
physically or mentally disabled in accordance with the terms and conditions of
any disability insurance policy covering the Executive, or, if due to such
physical or mental disability the Executive becomes unable for a period of more
than six (6) consecutive months to perform his duties hereunder on substantially
a full-time basis as determined by the Company in its reasonable discretion, the
Company may, at its option, terminate the Executive's employment hereunder upon
not less than thirty (30) days' written notice.
Executive/Term Xxxxx Enterprises Inc. __________
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W. Xxxxxxx Xxxxxxx
(c) Cause. The Company may terminate the Executive's employment
hereunder for Cause effective immediately upon notice. For purposes of this
Agreement, the Company shall have "Cause" to terminate the Executive's
employment hereunder: (i) if the Executive engages in conduct which has caused
or is reasonably likely to cause demonstrable and serious injury to Company;
(ii) if the Executive is convicted of a felony as evidenced by a binding and
final judgment, order, or decree of a court of competent jurisdiction; (iii) for
the Executive's neglect of his duties hereunder or the Executive's refusal to
perform his duties or responsibilities hereunder as determined by the Company's
Board of Directors in good faith; (iv) consistent failure to achieve goals
established by the Board of Directors or their designate, provided that such
goals are presented in writing or otherwise communicated to Executive; (v) gross
incompetence; (vi) for the Executive's violation of this Agreement, including,
without limitation, Section 5 hereof; (vii) chronic absenteeism; (viii) for use
of illegal drugs; (ix) insobriety by the Executive while performing his or her
duties hereunder; and (x) for any act of dishonesty or falsification of reports,
records, or information submitted by the Executive to the Company.
(d) Non-Compete Payment. In the event of a termination of the
Executive's employment pursuant to Section 6 or by the Executive, all payments
and Company benefits to the Executive hereunder, except the payments (if any)
specified in Section 6(a) above or provided for below, shall immediately cease
and terminate. In the event of a termination by the Company of the Executive's
employment with the Company for any reason other than pursuant to Section 6(c),
the Covenant Not-to-Compete set forth in Section 5 hereof shall remain in full
force and effect through the full stated Term of this Agreement; and
additionally, from the end of the Term of this Agreement through the non-compete
period stated on Exhibit "A", the Company shall pay the Executive Not-to-Compete
pay in equal biweekly installments ("Non-Compete Payment Installments") in the
amount set forth on Exhibit A ("Non-Compete Payment"). Such Non-Compete Payment,
however, shall not be required to be paid by the Company if the Company elects,
in its sole discretion, to release the Executive from the Covenant
Not-to-Compete set forth in Section 5 hereof. Additionally, if the Company
commences paying Executive Non-Compete Payment Installments and subsequently
elects in the future, in its sole discretion, to release Executive from the
Covenant Not-to-Compete and gives notice to Executive, then, at the effective
date of such notice, Executive shall no longer be subject to the Covenant
Not-to-Compete, and no further Non-Compete Payment Installments shall be due or
payable to Executive. If the Company terminates the Executive's employment
pursuant to Section 6(c) or the Executive terminates such employment, the
Executive shall not be entitled to the Non-Compete Payment, and the Covenant
Not-to-Compete set forth in Section 5 hereof shall remain in full force and
effect. Notwithstanding anything to the contrary herein contained, the Executive
shall receive all compensation and other benefits to which he was entitled under
this Agreement or otherwise as an executive of the Company through the
termination date.
7. NOTICE. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by telecopier, facsimile
transmission, or other electronic means of transmitting written documents (as
long as receipt is acknowledged) or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive, to the address set forth on the signature
page.
If to the Company: Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Group Executive and Sr.
Vice President, Human Resources
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
Executive/Term Xxxxx Enterprises Inc. __________
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W. Xxxxxxx Xxxxxxx
8. ENFORCEMENT, GOVERNING LAW, AND ATTORNEY'S FEES. It is
stipulated that a breach by Executive of the restrictive covenants set forth in
Sections 4 and 5 of this Agreement will cause irreparable damage to Company or
its Clients, and that in the event of any breach of those provisions, Company is
entitled to injunctive relief restraining Executive from violating or continuing
a violation of the restrictive covenants as well as other remedies it may have.
Additionally, such covenants shall be enforceable against the Executive's
successors or assigns or by successor assigns.
The validity, interpretation, construction, and performance of
this Agreement shall be governed by the internal laws of the State of Florida.
Any litigation to enforce this Agreement shall be brought in the state or
federal courts of Hillsborough County, Florida, which is the principal place of
business for Company and which is considered to be the place where this
Agreement is made. Both parties hereby consent to such courts' exercise of
personal jurisdiction over them.
In the event action is brought by either party to enforce any
of the terms and conditions set forth herein, the prevailing party is entitled
to recover its reasonable attorneys' fees and costs.
9. MISCELLANEOUS. No provision of this Agreement may be modified
or waived unless such waiver or modification is agreed to in writing signed by
the parties hereto. No waiver by any party hereto of any breach by any other
party hereto shall be deemed a waiver of any similar or dissimilar term or
condition at the same or at any prior or subsequent time. This Agreement is the
entire agreement between the parties hereto with respect to the Executive's
employment by the Company and there are no agreements or representations, oral
or otherwise, expressed or implied, with respect to or related to the employment
of the Executive which are not set forth in this Agreement. Any prior agreement
relating to the Executive's employment with the Company is hereby superseded and
void, and is no longer in effect. This Agreement shall be binding upon and inure
to the benefit of the Company, its respective successors and assigns, and the
Executive and his heirs, executors, administrators and legal representatives.
Except as expressly set forth herein, no party shall assign any of his or its
rights under this Agreement without the prior written consent of the other party
and any attempted assignment without such prior written consent shall be null
and void and without legal effect. The parties agree that if any provision of
this Agreement shall under any circumstances be deemed invalid or inoperative,
the Agreement shall be construed with the invalid or inoperative provision
deleted and the rights and obligations of the parties shall be construed and
enforced accordingly. 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 will constitute but one and the same instrument. This Agreement has
been negotiated and no party shall be considered as being responsible for such
drafting for the purpose of applying any rule construing ambiguities against the
drafter or otherwise.
10. PLACE OF PERFORMANCE. During the Term, Executive's principal
place of business shall be located in Tampa, Florida.
11. TERMINATION AFTER CHANGE OF CONTROL. In the event Executive's
employment hereunder is terminated by the Company for any of the reasons set
forth in Section 6(a), (b), or (c), or by the Executive (other than for Good
Reason, defined herein below), then this Section 11, dealing with Change of
Control, shall have no effect, and Executive shall not be entitled to any Change
of Control Termination Payment in such event. If, however, Executive's
employment hereunder is terminated after a Change of Control (i) by the
Executive for Good Reason; or (ii) by the Company (or any successor thereto or
assignee thereof) other than pursuant to Section 6(a), (b), or (c), then, in
that event, Executive shall receive (in equal installments over two years and in
accordance with Company policy immediately prior to such termination) an amount
to be determined by multiplying by two (2) Executive's base salary and earned
bonus (regardless of whether such bonus is paid by the Company) for the calendar
year immediately prior to such termination ("Change of Control Termination
Payment"). A "Change in Control" shall be deemed to have occurred if the event
set forth in any one of the following paragraphs shall have occurred:
Xxxxx Enterprises Inc. __________
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(i) the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals who,
immediately after the annual meeting of shareholders of the Company held in
2000, constituted the Board of Directors and any new directors (other than
directors whose initial assumption of office is in connection with an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A under the Act) whose appointment
or election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors immediately after the
annual meeting of shareholders of the Company held in 2000 or whose appointment,
election or nomination for election was previously so approved; or
(ii) the stockholders of the Company approve a merger,
consolidation or share exchange of the Company with any other corporation or
approve the issuance of voting securities of the Company in connection with a
merger, consolidation or share exchange of the Company (or any direct or
indirect subsidiary of the Company) pursuant to applicable stock exchange
requirements, other than (A) a merger, consolidation or share exchange which
would result in the voting securities of the Company outstanding immediately
prior to such merger, consolidation or share exchange continuing to represent
(either by remaining outstanding or by being converted into the right to receive
voting securities of the surviving entity or any parent thereof) at least 50% of
the combined voting power of the voting securities of the Company or such
surviving entity or any parent thereof outstanding immediately after such
merger, consolidation or share exchange, or (B) a merger, consolidation or share
exchange effected to implement a recapitalization of the Company (or similar
transaction) in which no Person (other than Xxxx X. Xxxxx) is or becomes the
beneficial owner, directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company or its Affiliates after the annual meeting of
shareholders of the Company held in 2000 pursuant to express authorization by
the Board that refers to this exception) representing 45% or more of either the
then outstanding shares of common stock of the Company or the combined voting
power of the Company's then outstanding voting securities; or
(iii) The stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an agreement for the sale
or disposition by the Company of all or substantially all of the Company's
assets (in one transaction or a series of related transactions within any period
of 24 consecutive months), other than a sale or disposition by the Company of
all or substantially all of the Company's assets to an entity at least 75% of
the combined voting power of the voting securities of which are owned by Persons
in substantially the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be deemed
to have occurred if there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the common stock
of the Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
that owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
The Executive may terminate his own employment pursuant to and only
after the condition of this Section 11 has occurred for Good Reason; and the
Company expressly acknowledges and agrees that, upon such termination, the
Executive shall be entitled to the Change of Control Termination Payment, as
hereinafter defined, to which the Executive, but for such termination, would
otherwise be entitled. For purposes of this Agreement, "Good Reason" shall mean
the occurrence of any of the following events subsequent to a Change of Control:
(i) any reduction of the Base Salary or any other compensation or benefits
(other than the Performance Bonus); or (ii) any other material adverse change to
the terms and conditions of the Executive's employment, including but not
limited to any diminution of the Customary Duties (as herebelow defined).
Xxxxx Enterprises Inc. __________
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Subsequent to a Change of Control, the Executive shall
continue to hold such office and such level of authority and responsibility
within the Company either (a) as was held immediately prior to such Change of
Control or (b) of such scope, importance and influence as is customarily
associated with the office held by him at the time of such Change of Control
(hereinafter collectively referred to as the "Customary Duties").
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By:/S/ Xxxx X. Xxxxx /S/ W. Xxxxxxx Xxxxxxx
------------------------------ --------------------------------------
Xxxx X. Xxxxx W. Xxxxxxx Xxxxxxx
Address:
Xxxxx Enterprises Inc. __________
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W. Xxxxxxx Xxxxxxx
EXHIBIT A TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
TERM: Through March 05, 2004
BASE SALARY: Through March 5, 2002:$5,576.92 per week
After March 5, 2002: $6,442.31 per week
Subject to continued employment of Executive
PERFORMANCE BONUS: Executive's Target Bonus is 0% to 75% of base
compensation, based on the following factors,
weighted in the manner indicated below:
10% Achievement of Company's annual operating plan
15% 100% achievement of adjusted street expectations
15% Achievement of financial organization operating
plan
60% Achievement of financial organization's
Management Business Objectives
(non-financial), as approved by the Board of
Directors, with the amount of bonus payment
dependent on the assessment of the Chairman
and CEO.
The factors listed above, and their
application in fiscal year 2002, are
outlined in further detail in Schedule A -
2002. An updated Schedule A shall be
established and attached hereto with respect
to each subsequent fiscal year.
Performance bonus payments will be made in
accordance with the Company's standard
policy for the payment of performance
bonuses.
FRINGE BENEFITS: ELIGIBLE FOR STANDARD FRINGE BENEFITS FOR EXECUTIVES
COVENANT NOT TO COMPETE: During full stated Term of Agreement and for twelve
(12) months thereafter
NON-COMPETE PAYMENT: For termination occurring on or before March 5, 2002:
$5,576.92 per week for 52 weeks, beginning after full
stated Term of Agreement, subject to Company's
discretion as per Section 6(d) of Agreement
For termination occurring after March 5,
2002: $6,442.31 per week for 52 weeks,
beginning after full stated Term of
Agreement, subject to Company's discretion
as per Section 6(d) of Agreement
THE COMPANY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, AT SUCH TIME OR TIMES AS
IT ELECTS, TO CHANGE OR ELIMINATE BONUSES OR OTHER BENEFITS, EXCEPT FOR THOSE
BONUSES AND OTHER BENEFITS SET FORTH IN THE EMPLOYMENT AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Exhibit A effective
as of the 1st day of October 2001.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By:/S/ Xxxx X. Xxxxx /S/ W. Xxxxxxx Xxxxxxx
------------------------------------ -----------------------------------
Xxxx X. Xxxxx W. Xxxxxxx Xxxxxxx
Xxxxx Enterprises Inc. __________
Executive/Term Page Number 10 Initial
