EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") as originally made August 1,
2002, and amended February 12, 2003, by and between Xxxxxx Holding Company,
Inc., a Delaware corporation ("Employer"), and Xxxxxxx X. Xxxxx, III
("Employee").
Recital
The Board of Directors of Employer and Employee desire to enter into a
written employment agreement under which Employee is granted certain rights in
consideration of his service to Employer.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Engagement. Employer hereby engages Employee to perform services and
duties for Employer in the capacity of Co-Chief Executive Officer. Employee
accepts such engagement and hereby agrees to perform the duties, undertake the
responsibilities and exercise the authority customarily performed, undertaken
and exercised by persons situated in a similar executive capacity. Excluding
discretionary periods of vacation and sick leave to which the Employee is
entitled, the Employee agrees to devote reasonable attention and time to the
business and affairs of Employer to the extent necessary to discharge the
responsibilities assigned to the Employee hereunder.
2. Term. The initial term of employment under this Agreement shall be for
the period commencing on the date hereof, and ending August 31, 2004; provided,
however, that the term of this Agreement shall be automatically extended for one
(1) year on each anniversary this Agreement unless either Employer or Employee
shall have given written notice to the other at least ninety (90) days prior
thereto that the term of this Agreement shall not be so extended.
3. Compensation. In consideration of the services to be rendered by
Employee, Employer shall pay Employee an annual base salary of up to five
hundred thousand dollars (US $500,000), not to exceed the lesser of (i) 1.0%
annually of Employer's reported gross asset value, or (ii) 5.0% annually of
Employer's reported total shareholder's equity, payable monthly based upon the
ending balance sheet for the previous quarter. Employer may in its discretion
from time to time increase, but may not decrease, Employee's base salary. Both
Employer and Employee note that it is possible for the Employee's actual salary
to decrease, without any action on the part of the Employer's Board of
Directors, since it is calculated based on Employer's quarterly reported gross
asset value and shareholder's equity, which is subject to periodic fluctuation.
4. Expenses. Employee shall be entitled to receive prompt reimbursement of
all expenses reasonably incurred by him in connection with the performance of
his duties hereunder or for promoting, pursuing or otherwise furthering the
business or interests of Employer. Employer may require as a condition to
reimbursement the submission of an expense report accompanied by appropriate
receipts or other suitable evidence of the expenditure.
5. Benefits. Employee shall be entitled to receive all standard benefits
offered by Employer to its employees and such other benefits as Employer may in
its discretion provide to Employee, including bonuses or other incentive
compensation. No bonus or incentive compensation shall be or be deemed to be an
increase in Employee's base salary.
6. Termination Upon Disability or Death. In the event that Employee shall
become disabled, Employer may terminate this Agreement upon thirty (30) days
written notice to Employee. For purposes of this Agreement, the term "disabled"
is used as defined in the Amended and Restated Shareholders' Agreement among
Employer and certain of its shareholders, including Employee, being entered into
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contemporaneously with this Agreement. If Employee dies during the term of this
Agreement or if this Agreement is terminated pursuant to the preceding sentence,
Employee or his estate shall be paid as additional compensation hereunder,
within sixty (60) days after such termination, an amount equal to two times
Employee's annual base salary as then in effect or the balance due under this
Agreement, whichever is greater.
7. Termination for Cause. Employer may terminate its obligations under this
Agreement for cause upon thirty (30) days written notice. For purposes of this
Agreement, "cause" means (a) continued and deliberate neglect by Employee of
employment duties continuing for thirty (30) days after written notice from
Employer specifying the neglect; (b) willful misconduct of Employee in
connection with the performance of any of his duties; (c) fraud, embezzlement,
theft or other dishonesty by Employee with respect to Employer; (d) the
commission by the Employer of any felony or any other crime involving dishonesty
or moral turpitude; or (e) material breach by Employee of Section 9 of this
Agreement. Upon such termination, all obligations of Employer to Employee under
this Agreement, except for any accrued and unpaid salary or benefits, shall
cease except as may otherwise be required by law. If Employer terminates the
employment of Employee pursuant to this Section 7, Employee shall have no
further liability or obligations to Employer except his obligations under
Section 9. In any action or proceeding in which Employer asserts the existence
of cause for termination, whether asserted as a claim, a counterclaim, an
affirmative defense, or otherwise, Employer shall have the burden of proving by
clear and convincing evidence that cause for termination exists.
8. Voluntary Termination. If Employee voluntarily resigns or otherwise
voluntarily leaves the employ of the Company in violation of this Agreement,
Employer's obligations to Employee under this Agreement, except for any accrued
and unpaid salary and benefits, shall cease.
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9. Confidentiality. Employee will maintain in strict confidence and will
not use or disclose, except for the business purposes of Employer, any
confidential information obtained from and belonging to Employer. Confidential
information includes, but is not limited to, trade secrets, supplier
information, customer information, pricing information, internal corporate
planning, Employer's secrets, historical financial data and forecasts,
long-range plans and strategies, and any other data or information of or
concerning Employer that is not generally known to the public or the industry in
which Employer is engaged.
10. Severability and Enforcement. If any provision of this Agreement is
unlawful or against public policy and thus void or is otherwise declared void,
such provision shall not be deemed part of this Agreement, which otherwise shall
remain in full force and effect.
11. Governing Law. This Agreement shall be construed according to the laws
of the State of Delaware, without giving effect to the principles of the
conflicts of law.
12. Notices. All written notices required by this Agreement shall be deemed
given when delivered personally or sent by registered or certified mail or
courier service, return receipt requested, to the parties at their last known
addresses. Each party may, from time to time, and shall, upon request of the
other party, designate an address to which notices should be sent.
13. Amendment. This Agreement may not be amended except by the written
agreement of the parties.
14. Binding Effect. This Agreement shall be binding on Employee, his heirs,
executors, personal representative, and assigns, and on Employer, its successors
and assigns. Should there be a consolidation or merger of Employer with or into
another entity or a purchase of all or substantially all of the assets of
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Employer by another entity, Employer shall take all action necessary so that the
surviving or acquiring entity will succeed to the rights and obligations of
Employer under and be bound by this Agreement.
15. Entire Contract. This Agreement constitutes the entire agreement
between the parties.
16. Contract Under Seal. The parties acknowledge that they intend this
contract to be a contract under seal.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date specified above.
XXXXXX HOLDING COMPANY, INC.
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Attest By: Xxxxxx X. Xxxxx
---------------------- Co-Chief Executive Officer
[CORPORATE SEAL]
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XXXXXXX X. XXXXX, III
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