EXHIBIT 10(m)
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into to be
effective as of the 1st day of April 2002, by and between Xxxxx-Xxxxx, Inc., a
Delaware corporation (the "Company"), and Xxxxx Xxxxxxxx ("Executive").
Preliminary Statements
WHEREAS, Executive has served as Chairman of the Board and Chief
Executive Officer of the Company and has substantial knowledge and expertise
concerning the business and affairs of the Company.
WHEREAS, Executive has resigned from his office as Chief Executive
Officer effective as of the date hereof.
WHEREAS, the Company desires that Executive remain as Chairman of the
Board of the Company and Executive desires to remain in such capacity.
NOW THEREFORE, in consideration of the agreements set forth below and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, the Company and Executive agree as follows:
1. Employment and Duties of Executive.
(a) Executive shall serve in the capacity of Chairman of the
Board of the Company ("Chairman"), and shall be subject to supervision
by the Board of Directors of the Company. In such capacity, Executive
shall have all powers granted by the Bylaws of the Company to the
Chairman and Executive shall report to the Board of Directors of the
Company. For so long as Executive serves as Chairman of the Company,
the Company shall nominate and support the election of Executive as a
member of the Board of Directors of the Company.
(b) While the Company employs Executive, Executive shall
devote such time and effort as are necessary for the performance of his
duties and responsibilities as Chairman of the Company. It is the
expectation of the parties that during the 2002 calendar year Executive
shall devote substantially all his business time and effort to his
duties and responsibilities as Chairman and a lesser amount of time
thereafter. Notwithstanding the foregoing, Executive may spend
reasonable amounts of time on personal civic and charitable activities
that do not interfere with the performance of his duties and
responsibilities to the Company. In addition, Executive may, subject to
prior approval by the Board of Directors of the Company, spend
reasonable amounts of time serving as an independent director for other
companies, provided that such service does not, in the reasonable
discretion of the Board of Directors of the Company, constitute or
create a conflict of interest.
(c) Executive shall observe and comply with the written rules
and regulations of the Company respecting its business and shall carry
out and perform the directives and policies of the Company as the Board
of Directors may from time to time state them to Executive in writing.
3. Term. The term of Executive's employment under this Agreement shall
commence effective as of April 1, 2002 (the "Effective Date") and continue until
the third anniversary of the Effective Date (the "Term"), unless Executive's
employment is earlier terminated in accordance with the
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terms of the Severance Agreement (as defined in Section 7 below). If during the
Term, Executive's employment is terminated in accordance with the Severance
Agreement, the terms and provisions of this Agreement shall terminate at such
time, except as otherwise provided for herein. Following the Term, Executive's
employment with the Company may continue on such terms as are mutually agreeable
to the parties.
4. Salary. The Company shall pay Executive for his services as Chairman
an annual base salary of $650,000 during the first 12 months of the Term, and an
annual base salary of $600,000 thereafter, which shall be payable in accordance
with the Company's standard payroll practices, but not less than monthly. Such
base salary shall not include any benefits made available to Executive or any
contributions or payments made on his behalf pursuant to any employee benefit
plan or program of the Company, including any health, disability or life
insurance plan or program, 401-K plan, retirement plan or similar plan or
program of any nature.
5. Bonus Compensation. For the fiscal year ending December 31, 2002,
the Executive shall be eligible for a performance bonus of up to fifty percent
of his aggregate base salary paid by the Company during the 2002 fiscal year,
including prior to the Effective Date. Such performance bonus shall be payable
in accordance with the Company's bonus policy for senior executive officers in
effect as of the Effective Date. Executive shall not be entitled to a
performance bonus for the Term remaining after December 31, 2002.
6. Executive Benefits. During the Term, the Company shall provide
Executive with all benefits made available from time to time by the Company to
its employees and/or senior executive officers generally, such benefits to be in
accordance with the Company's policies. Specifically, Executive's benefits shall
include participation in medical, dental and vision plans or programs;
disability insurance; 401-K plans; life insurance payable to Executive's
designated beneficiary and paid vacation up to four weeks per calendar year.
7. Severance Agreement. The Company and Executive acknowledge and agree
that the Amended and Restated Severance Agreement (as amended from time to time,
the "Severance Agreement") dated December 15, 2000, between the Company and
Executive shall remain in full force and effect (amended as hereby) and shall
govern any termination of Executive's employment with the Company. In addition,
the Company and Executive agree that on the Effective Date, the Severance
Agreement shall be amended as set forth in this Section 7. If during the Term, a
Change in Control (as defined in the Severance Agreement) occurs and Severance
Compensation (as defined in the Severance Agreement) is due to Executive, the
Severance Compensation shall be a lump sum cash amount equal to 200% of the sum
of (a) the annual base salary of Executive in effect immediately prior to the
Effective Date plus (b) the average of the bonus or incentive compensation of
Executive received from the Company for the two fiscal years preceding the
Effective Date (such years being the 2000 and 2001 fiscal years). If any terms
or provisions of the Severance Agreement are inconsistent with the terms and
provisions of this Section 7, the terms and provisions of this Section 7 shall
control and supersede the Severance Agreement.
8. Life Insurance Policy. Promptly after the Effective Date, the
Company shall transfer to Executive its fifty percent interest in the $6 million
term life insurance policy on Executive currently in existence. The Company
shall pay the premiums on such policy through December 31, 2006. This Section 8
shall survive the expiration or termination of this Agreement.
9. Notice Provision. Any notice, demand or request required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed given or made when delivered in person, when sent by United States
registered or certified mail, or postage prepaid, or when faxed to a party at
its address or facsimile number specified below:
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If to the Company:
Xxxxx-Xxxxx, Inc.
000 Xxxxxxx Xxxxx xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: General Counsel
If to Executive:
Xxxxx Xxxxxxxx
16451 Lost Cabin
Xxx Xxxxxxx, Xxxxx 00000
The parties to this Agreement may change its addresses for notice in
the manner provided above.
10. Headings Non-binding. All section titles and captions in this
Agreement are for convenience only, shall not be deemed part of this Agreement,
and in no way shall define, limit, extend or describe the scope or intent of any
provisions hereof.
11. Further Assurances. The parties shall execute all documents,
provide all information and take or refrain from taking all actions as may be
reasonably necessary or appropriate to achieve the purposes of this Agreement.
12. Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, personal
representatives, successors, and assigns. The services to be performed hereunder
are personal to Executive and may not be assigned by an act or omission by
Executive, by operation of law or otherwise. The Company shall require any
successor, and any corporation or other person which is in control of such
successor, to all or substantially all of the business and/or assets of the
Company (by asset purchase, stock purchase, merger, consolidation, combination
or otherwise), by agreement in form and substance satisfactory to Executive, to
expressly assume and agree to perform this Agreement and the Severance Agreement
in the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
13. Multiple Originals. This Agreement may be executed in counterparts,
all of which together shall constitute one agreement binding on all the parties
hereto, notwithstanding that all such parties are not signatories to the
original or the same counterpart.
14. CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAW.
15. Written Amendments Provision. No supplement, modification or
amendment of this agreement or waiver of any provision of this Agreement shall
be binding unless executed in writing by all parties to this Agreement. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision of this Agreement (regardless of
whether similar), nor shall any such waiver constitute a continuing wavier
unless otherwise expressly provided.
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EXECUTED to be effective as of the date first above written.
XXXXX -XXXXX, INC.
By:
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Name:
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Title:
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Xxxxx Xxxxxxxx
