EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("this Agreement") is made and entered into
as of March 12, 2002 (the "Effective Date"), by and between Xxxxxx Co., a
Pennsylvania corporation (the "Company"), and Xxxxx X. O'Coin ("Executive").
The Company hereby agrees to employ Executive, and Executive hereby
accepts such employment, on the terms and conditions hereinafter set forth. The
offer of employment letter dated March 8, 2002 (the "Offer Letter"), is hereby
incorporated herein by reference; however, the provisions of this Employment
Agreement shall supersede the Offer Letter in case there is a discrepancy
between the documents or if the Offer Letter does not address certain issues,
similarly any issues addressed in the Offer Letter but not herein shall be
considered part of this Employment Agreement.
1. POSITION.
From the Effective Date until the termination of Executive's employment
hereunder (the "Period of Employment"), Executive shall serve in the capacity
indicated on Schedule 1 hereto, and shall have the normal duties and
responsibilities commensurate with such position. During the Period of
Employment, Executive will (a) during normal business hours, devote his full
time and exclusive attention to, and use his best efforts to advance, the
business and welfare of the Company, and (b) not engage in any other employment
activities for any direct or indirect remuneration without the concurrence of
the Executive's Supervisor and the Board of Directors (the "Board"), provided,
however, Executive may serve on corporate, charitable and community boards so
long as such activities do not unreasonably interfere with the performance of
his duties under this Agreement and provided that any such activities are
approved in advance by the Executive's Supervisor and the Board, which approval
will not be unreasonably withheld.
2. PLACE AND TERM OF EMPLOYMENT.
(a) Executive's office shall be at the location set forth on Schedule 1
attached hereto. Executive shall relocate to the Western Pennsylvania/Eastern
Ohio area, within approximately one (1) hour driving time of the Greenville
facility, by June 2002.
(b) Subject to Section 6 hereunder, the term of this Agreement shall be
through March 11, 2005. This Employment Agreement shall be automatically renewed
for successive one (1) year periods unless either party gives notice otherwise
within 12 months, but not less than 6 months prior to an expiration.
3. COMPENSATION.
3.1 BASE SALARY. Effective as of March 12, 2002 the Company shall pay
Executive the per annum Base Salary indicated on Schedule 1 attached hereto
during the Period of Employment payable biweekly and otherwise in accordance
with the standard policies of the Company and subject to payroll deductions as
may be necessary or customary in respect of the Company's salaried employees in
general. Thereafter Executive's Base Salary hereunder shall be subject to annual
review.
3.2 PERFORMANCE BASED COMPENSATION. In addition to the Base Salary
provided for in Section 3.1 hereof, commencing on March 12, 2002, Executive
shall be eligible to receive an annual cash bonus (not prorated based on
service) earned during the calendar year in an amount equal to 65% of the Base
Salary in effect at the end of such calendar year based upon the extent to which
Xxxxxx Holding Co. (PA), Inc.'s ("Holdings") consolidated Earnings Before
Interest, Taxes, Depreciation and Amortization ("EBITDA"), as defined in Exhibit
1 hereto, equals or exceeds the percentages of target annual EBITDA with respect
to such fiscal year in accordance with the attached Exhibit 3.
The EBITDA target for the fiscal year 2002 is $83 million and for
future years shall be set by Holdings' Board of Directors as part of its annual
budgeting process.
Executive shall also be eligible to receive an additional annual cash
bonus at the discretion of the Executive's Supervisor and the Board based upon
the evaluation of Executive's performance for each fiscal year of Holdings
during the Period of Employment. Bonuses will be payable no later than April of
the respective years following the years with respect to which they were earned.
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3.3 ADDITIONAL OPPORTUNITY: You shall be entitled for consideration to
receive an additional discretionary payment based upon your performance and the
results of a change of control transaction for the first three (3) years of your
employment.
4. BENEFITS.
During the Period of Employment, Executive shall be entitled to
participate in all benefit plans and programs maintained by the Company which
are available to its executive officers or employees generally, including any
and all perquisites, provided that, (i) Executive's right to participate in such
plans and programs shall not affect the Company's right to amend or terminate
the general applicability of such plans and programs, and (ii) Executive
acknowledges that he shall have no vested rights under or to participate in any
such plan or program except as expressly provided under the terms thereof. The
Company shall provide the Executive with the benefits described on Exhibit 2
hereto, provided, however, the benefits so described may be amended or
terminated by the Board.
5. EXPENSES; TAXES.
Upon presentation of acceptable substantiation therefor, the Company
will pay or reimburse Executive for such reasonable travel, entertainment and
other expenses as he may incur during the Period of Employment in connection
with the performance of his duties hereunder. Federal, state and local income
taxes shall be withheld on all cash and in-kind payments made by the Company to
Executive in accordance with applicable tax laws and regulations.
6. TERMINATION OF EMPLOYMENT.
The provisions of this Section 6 shall apply upon termination of
Executive's employment hereunder. In connection with any termination of
Executive's employment hereunder, Executive or his beneficiaries shall be
entitled to receive, pro-rated as appropriate, earned but unpaid Base Salary,
unreimbursed amounts pursuant to Section 5 hereof, and unpaid and unreimbursed
payments and benefits under, and in accordance with the terms of, applicable
benefit plans and programs, said payments being collectively referred to as
Standard Termination Payments.
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6.1 FOR CAUSE OR NOT FOR GOOD REASON. If the Company terminates
Executive's employment for Cause (as hereinafter defined) or if Executive
terminates his employment other than for Good Reason (as defined in Section
6.3), the Company's obligations to compensate Executive shall in all respects
cease as of the date of such termination, except for Standard Termination
Payments. Termination of Executive's employment for "Cause" shall mean
termination by the Company because Executive:
(i) has been convicted of a felony, or has entered a plea of
guilty or nolo contendere to a felony;
(ii) has committed an act of fraud involving dishonesty for
personal gain which is materially injurious to the Company;
(iii) has willfully and continually refused to substantially
perform his duties with the Company (other than any such refusal resulting from
his incapacity due to mental illness or physical illness or injury), after a
demand for substantial performance has been delivered to the Executive by the
Executive's Supervisor and the Board, where such demand specifically identifies
the manner in which the Executive's Supervisor and the Board believe that the
Executive has refused to substantially perform his duties and the passage of a
reasonable period of time for Executive to comply with such demand; or
(iv) has willfully engaged in gross misconduct materially and
demonstrably injurious to the Company or its subsidiaries.
For purposes of this paragraph, no act or failure to act on
the Executive's part shall be considered "willful" unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company or its subsidiaries.
Notwithstanding the foregoing, with respect to termination for Cause arising out
of conduct described in clause (ii), (iii) or (iv) above, a termination shall
not be considered for Cause for purposes of this Agreement unless there shall
have been delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire Board, at a
meeting of the Board called and held for that purpose (after reasonable notice
to the Executive and an opportunity for the Executive, together with his counsel
or other
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advisors, to be heard at such meeting), finding that in the good faith opinion
of the Board the Executive had engaged in conduct described in clause (ii),
(iii) or (iv) above and specifying the particulars thereof in detail. Such a
finding by the Board of Directors of the Company is a prerequisite to a
termination for Cause pursuant to clauses (ii), (iii) or (iv) above; provided,
however, that such a finding may be challenged, by arbitration pursuant to
section 8.9 hereof, on the merits (i.e., that Cause did not exist) or on the
basis that the Board's finding was not made in good faith (provided that proof
that Cause for termination existed shall be a complete defense to any showing
that the Board's findings were not made in good faith).
If the Executive terminates his employment other than for Good Reason,
the Executive must provide the Company with thirty (30) days written notice
prior to such termination.
6.2 UPON DEATH OR PERMANENT DISABILITY. If Executive's employment is
terminated as a result of death or Permanent Disability (as hereinafter
defined), the Company's obligation to compensate Executive shall in all respects
cease as of the date of such termination, except for Standard Termination
Payments including all applicable disability benefits. The Company may terminate
Executive's employment hereunder attributable to the "Permanent Disability" of
Executive if Executive becomes physically or mentally incapacitated or disabled
so that he is unable to perform for the Company substantially the same services
as he performed prior to incurring such incapacity or disability (the Company,
at its option and expense, is entitled to retain a physician reasonably
acceptable to Executive to confirm the existence of such incapacity or
disability, and the determination of such physician shall be binding upon the
Company and Executive), and such incapacity or disability exists for an
aggregate of six (6) calendar months in any twelve (12) calendar month period.
6.3 NOT FOR CAUSE OR FOR GOOD REASON. If (i) Executive's employment is
terminated by the Company for a reason other than Cause, Executive's death or
Executive's Permanent Disability, or (ii) Executive terminates his employment
for Good Reason (as hereinafter defined), the Company's obligation to compensate
Executive shall in all respects cease as of the date of such termination, except
(a) for Standard Termination Payments, (b) that the Company will pay to
Executive an amount equal to twelve (12) month's of the Executives base salary
in effect at the time of such termination paid in twelve (12) equal monthly
payments over the next twelve
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(12) months; and (c) that the Company will, for a period of twelve (12) months
following said date of termination, provide Executive with retirement benefits
and welfare (including any life insurance, hospitalization, medical and
disability) benefits, substantially similar to those provided to Executive as of
the date of termination, provided that such welfare benefits shall be
discontinued to the extent Executive receives similar benefits from subsequent
employment. Nevertheless, it is the intent that this continuation of health
benefits shall not be considered part of any COBRA rights and Executive shall be
eligible to further continue his health benefits in accordance with COBRA
subsequent to the period described in the previous sentence. For purposes of
this Agreement, "Good Reason" shall mean (1) a reduction by the Company in the
Executive's bonus opportunities or, except as specifically provided herein, base
salary as in effect on the Effective Date or as the same may be increased from
time to time; (2) unless the members of the Board appointed pursuant to Section
4(iii) of the Shareholder Agreement dated as of the date hereof agree to such
reduction or other action, any material reduction in the level of benefits
(including participation in any bonus plan) to which the Executive is entitled
under one or more employee benefit plans on the Effective Date, or the taking of
any action by the Company which would adversely affect the Executive's accrued
benefits under any such employee benefit plans or deprive the Executive of any
material fringe benefit enjoyed by the Executive on the Effective Date; (3) a
demand by the Company to the Executive to relocate to any place that exceeds a
fifty (50) mile radius beyond the location at which the Executive performed the
Executive's duties on the Effective Date; or (4) any material breach by the
Company of any provision of this Agreement.
6.4 RELEASE AND SATISFACTION. At the time of termination of Executive's
employment, Executive and the Company agree to execute mutual releases whereby
(a) Executive will release, relinquish and forever discharge the Company and any
director, officer, employee, shareholder, controlling person or agent of the
Company from any and all claims, damages, losses, costs, expenses, liabilities
or obligations, whether known or unknown (except as set forth in Section 6.5
hereof other than any such claims, damages, losses, costs, expenses, liabilities
or obligations arising under (i) any indemnification arrangement of the Company
with respect to Executive, (ii) any employee benefit plan or program (whether or
not tax-qualified) covering Executive, (iii) any stock purchase or stock option
plan or agreement to which the Company and Executive are
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parties (or any document executed in connection therewith) or (iv) this
Agreement, to the extent the Company or any such person has continuing
obligations pursuant to the express provisions hereof following such
termination), which Executive has incurred or suffered or may incur or suffer as
a result of Executive's employment by the Company or the termination of such
employment, and (b) the Company will release, relinquish and forever discharge
Executive and his heirs, successors and assigns from any and all claims,
damages, losses, costs, expenses, liability or obligations, whether known or
unknown (except as set forth in Section 6.5 hereof and other than any such
claims, damages, losses, costs, expenses, liabilities or obligations arising
under any of the arrangements or agreements referred to in clauses (i) through
(iii) in the preceding clause (a) of this Section 6.4 or under this Agreement to
the extent Executive or any such person has continuing obligations pursuant to
the express provisions hereof following such termination), which the Company has
incurred or suffered or may incur or suffer as a result of the Company's
employment of Executive or the termination of such employment.
6.5 EFFECT ON THIS AGREEMENT. The termination of Executive's employment
shall not affect the continuing operation and effect of Sections 6.4 and 7
hereof, nor affect any obligation of the Company to make payments pursuant to
Section 6 hereof, which shall continue in full force and effect upon the Company
and Executive, and its and his heirs, successors and assigns. Nothing in Section
6.1 or 6.4 hereof shall be deemed to operate or shall operate as a release,
settlement or discharge of any liability of Executive to the Company (a) from
any act or omission by Executive enumerated in Section 6.1 which constituted a
reason for termination of Executive's employment for Cause or (b) in connection
with any amount Executive owes to the Company pursuant to a loan or other
advance.
6.6 MITIGATION. Executive shall not be required to mitigate the amount
of any payment provided for under this Agreement by seeking other employment or
otherwise nor will any payments provided for herein be subject to offset in
respect of any claims which the Company may have against Executive and, except
as specifically provided herein, the amount of any payment or benefit provided
for in this Agreement shall not be reduced by any compensation earned or
benefits received by Executive as the result of employment by a future employer,
by offset against any amount claimed to be owed by him to the Company, or
otherwise.
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7. NON-COMPETITION; NON-DISCLOSURE OF PROPRIETARY INFORMATION, SURRENDER OF
RECORDS; INVENTIONS AND PATENTS.
7.1 NON-COMPETITION
(a) Executive acknowledges that in the course of his
employment with the Company he will become familiar with the trade secrets and
other confidential information of the Company and its subsidiaries and that his
services will be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that, during the Period of Employment and for two
(2) years thereafter (the "Noncompete Period"), he shall not directly or
indirectly own, manage, control, participate in, consult with, render services
for, or in any manner engage in any business competing with the businesses of
the Company or any of its subsidiaries (i) which relates to (A) the
manufacturing or sale of climbing equipment or (B) aluminum extrusions or (ii)
which is commenced by the Company or any of its subsidiaries after the Effective
Date and as of the date of termination constitutes or will constitute a material
portion of the Company's overall future business within the United States and
any other geographical area in which the Company or any of its subsidiaries
engage in such businesses. Nothing herein shall prohibit Executive from being a
passive owner of not more than 2% of the outstanding equity of any class of a
corporation or other entity which is publicly traded so long as Executive has no
active participation in the business of such corporation.
(b) During the Noncompete Period, Executive shall not directly
or indirectly through another entity (i) induce or attempt to induce any
employee of the Company or any of its subsidiaries to leave the employ of such
person, or in any way interfere with the employee relationship between the
Company or any of its subsidiaries and any employee thereof, (ii) hire any
person who was an employee of the Company or any subsidiary of the Company at
any time during the Employment Period (other than individuals who have not been
employed by the Company or any subsidiary of the Company for a period of at
least one (1) year prior to employment by Executive directly or indirectly
through another entity), or (iii) induce or attempt to induce any customer,
supplier, licensee or other person having a business relationship with the
Company or any of its subsidiaries (A) which relates to (x) the manufacturing or
sale of climbing equipment or (y) aluminum extrusion or (B) which is commenced
by the Company or any of its
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subsidiaries after the Effective Date and as of the date of termination
constitutes or will constitute a material portion of the Company's overall
future business to cease doing business with the Company or such subsidiaries,
or interfere materially with the relationship between any such customer,
supplier, licensee or other person having a business relationship with the
Company or any of its subsidiaries.
7.2 PROPRIETARY INFORMATION. Executive agrees that he shall not use for
his own purpose or for the benefit of any person or entity other than the
Company or its shareholders or affiliates, nor otherwise disclose to any
individual or entity at any time while he is employed by the Company or
thereafter any proprietary information of the Company unless such disclosure (a)
has been authorized by the Board, (b) is in the good faith judgment of Executive
required in the course of Executive's employment hereunder, (c) is in the course
of such individual's or entity's employment or retention by the Company, or (d)
is required by law, a court of competent jurisdiction or a governmental or
regulatory agency. For purposes of this Agreement, the term "proprietary
information" shall mean: (a) the name or address of any customer, supplier or
affiliate of the Company or any information concerning the transactions or
relations of any customer, supplier or affiliate of the Company or any of its
shareholders; (b) any information concerning any product, technology or
procedure employed by the Company, but not generally known to its customers,
suppliers or competitors, or under development by or being tested by the
Company, but not at the time offered generally to customers or suppliers; (c)
any information relating to the marketing methods, sales margins, discounts,
rebates, supplier incentives, or the like, the capital structure, or results of
any business plan of the Company; (d) any information contained in the Company's
policies and procedures or employees' manual; (e) any inventions, innovations,
trade secrets or other items covered by Section 7.4 below; and (f) any other
information which the Board has determined by resolution and communicated to
Executive to be confidential or proprietary. However, proprietary information
shall not include any information that is or becomes generally known to the
public other than through actions of Executive in violation of Sections 7.1, 7.2
or 7.3 hereof or any information which become available to Executive on a
non-confidential basis from a source other than the Company, its affiliates or
their respective employees, provided that such source is not known to Executive
to be subject to any
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obligation of secrecy to the Company or its affiliates provided that such
information was unsolicited and that with regard thereto Executive took no
action.
7.3 CONFIDENTIALITY AND SURRENDER OF RECORDS. Executive agrees that,
while he is employed by the Company or at any time thereafter, he shall not
except as required by law give any "confidential records" (as hereinafter
defined) to, or permit any inspection or copying of confidential records by, any
individual or entity other than in the course of such individual's or entity's
employment or retention by the Company or as required by law, a court of
competent jurisdiction, or a governmental or regulatory agency, nor shall he
retain any of the same following termination of this employment, without the
prior approval of the Board. For purposes hereof, "confidential records" means
all correspondence, memoranda, files, manuals, financial, operating or marketing
records, magnetic tape, or electronic or other media of any kind which may be in
Executive's possession or under his control or accessible to him which contain
any proprietary information as defined in Section 7.2 above.
7.4 INVENTIONS AND PATENTS. Executive agrees that all inventions,
innovations, trade secrets, patents and processes in any way relating, directly
or indirectly, to the Company's or its subsidiaries' businesses developed by him
alone or in conjunction with others at any time during his employment by the
Company shall belong to the Company. Executive will use his best efforts to
perform all actions reasonably requested by the Executive's Supervisor or the
Board to establish and confirm such ownership by the Company.
7.5 DEFINITION OF COMPANY. For purposes of this Section 7, the term
"Company" shall include Holdings and any and all of its subsidiaries, ventures
or affiliates (including the Company and any and all of its subsidiaries,
ventures or affiliates) whether currently existing or hereafter formed.
7.6 ENFORCEMENT. The parties hereto agree that the duration and area
for which the covenants set forth in Section 7 are to be effective are
reasonable. In the event that any court or arbitrator determines that the time
period or the area, or both of them, are unreasonable and that any of the
covenants are to that extent unenforceable, the parties hereto agree that such
covenants will remain in full force and effect, first, for the greatest time
period, and second, in the greatest
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geographical area that would not render them unenforceable. The parties intend
that this Agreement will be deemed to be a series of separate covenants, one for
each and every county of each and every state of the United States of America.
Executive agrees that damages are an inadequate remedy for any breach of the
covenants in this Section 7 and that the Company will, whether or not it is
pursuing any potential remedies at law, be entitled to equitable relief in the
form of preliminary and permanent injunctions without bond or other security
upon any actual or threatened breach of this Agreement.
8. MISCELLANEOUS.
8.1 NOTICE. Any notice required or permitted to be given hereunder
shall be deemed sufficiently given if sent by registered or certified mail,
postage prepaid, addressed to the addressee at his or its address last provided
the sender in writing by the addressee for purposes of receiving notices
hereunder or, unless or until such address shall be so furnished, to the address
indicated opposite his or its signature to this Agreement. Each party may also
provide notice by sending the other party a facsimile at a number provided by
such other party.
8.2 MODIFICATION AND NO WAIVER OF BREACH. No waiver or modification of
this Agreement shall be binding unless it is in writing signed by the parties
hereto. No waiver by a party of a breach hereof by the other party shall be
deemed to constitute a waiver of a future breach, whether of a similar or
dissimilar nature, except to the extent specifically provided in any written
waiver under this Section 8.2.
8.3 GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the Commonwealth of Pennsylvania,
and all questions relating to the validity and performance hereof and remedies
hereunder shall be determined in accordance with such law.
8.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
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8.5 CAPTIONS. The captions used herein are for ease of reference only
and shall not define or limit the provisions hereof.
8.6 ENTIRE AGREEMENT. This Agreement together with any agreement, plans
or other documents implementing the terms of this Agreement constitute the
entire agreement between the parties hereto relating to the matters encompassed
hereby and supersede any prior oral or written agreements.
8.7 ASSIGNMENT. The rights of the Company under this Agreement may,
without the consent of Executive, be assigned by the Company, in its sole and
unfettered discretion, to any person, firm, corporation or other business entity
which at any time, whether by purchase, merger, or otherwise, directly or
indirectly, acquires all or substantially all of the stock, assets or business
of the Company.
8.8 NON-TRANSFERABILITY OF INTEREST. None of the rights of Executive to
receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by the
laws of descent and distribution upon the death of Executive. Any attempted
assignment, transfer, conveyance, or other disposition (other than as aforesaid)
of any interest in the rights of Executive to receive any form of compensation
to be made by the Company pursuant to this Agreement shall be void.
8.9 ARBITRATION. Any dispute, claim or controversy arising out of or
relating to this Agreement, or the breach, termination or validity hereof, shall
be finally settled by arbitration in accordance with the then-prevailing
Commercial Arbitration Rules of the American Arbitration Association, as
modified herein ("Rules"). There shall be one arbitrator who shall be jointly
selected by the parties. If the parties have not jointly agreed upon an
arbitrator within twenty days of respondent's receipt of claimant's notice of
intention to arbitrate, either party may request the American Arbitration
Association to furnish the parties with a list of names from which the parties
shall jointly select an arbitrator. If the parties have not agreed upon an
arbitrator within ten days of the transmittal date of the list, then each party
shall have an additional five days in which to strike any names objected to,
number the remaining names in order of preference, and return the list to the
American Arbitration Association, which shall then select an arbitrator in
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accordance with Rule 13 of the Rules. The place of arbitration shall be
Pittsburgh, Pennsylvania. By agreeing to arbitration, the parties hereto do not
intend to deprive any court of its jurisdiction to issue a pre-arbitral
injunction, pre-arbitral attachment or other order in aid of arbitration. The
arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections
1-16. Judgment upon the award of the arbitrator may be entered in any court of
competent jurisdiction. Each party shall bear its or his own costs and expenses
in any such arbitration and one-half of the arbitrator's fees and expenses.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first written above.
XXXXXX CO., a Pennsylvania corporation
By: ________________________________
Name: Xxxxxx X. Xxxxxx
Address for Notices: Title: President and CEO
00 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
General Counsel
With a copy to:
Investcorp International Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
EXECUTIVE
_______________________________________
Address for Notices: Xxxxx X. O'Coin
00 Xxxxxxxx
Xxxxxx Xxxxxx, XX 00000
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SCHEDULE 1
BONUS AMOUNT
TITLE LOCATION OF BASE SALARY AS A
OFFICE PERCENTAGE
OF BASE SALARY
00 Xxxxxx Xxxx
Sr. Vice President Greenville, PA $275,000 65%
Operations 16125-9499
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EXHIBIT 1
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EARNINGS BEFORE INTEREST, TAXES,
DEPRECIATION AND AMORTIZATION
Earnings Before Interest, Taxes, Depreciation and Amortization
("EBITDA") is defined as Consolidated Net Income (loss) of Holdings and its
subsidiaries as it would appear on a statement of income (loss), which shall (i)
exclude or be adjusted otherwise for all acquisitions and additional equity
contributions to the extent such acquisitions and/or equity contributions
materially change target EBITDA for any particular Fiscal Year, (ii) reflect a
reduction for all management and employment bonuses payable with respect to the
Fiscal Year of Holdings prepared in accordance with U.S. GAAP consistently
applied and (iii) be adjusted for any material Board approved amendment to the
capital expenditure plan: plus (minus) the following amounts, to the extent such
amounts are otherwise taken into account in determining EBITDA (prior to
adjustment):
1. Any provision (benefit) for taxes (including franchise taxes)
deducted (added) in calculating such consolidated net income (loss); plus
2. Any interest expense (net of interest income), deducted in
calculating such consolidated net income (loss); plus
3. Amortization expenses deducted in calculating consolidated net
income (loss); plus
4. Depreciation expense deducted in calculating consolidated net income
(loss); plus
5. Management fees paid to Investcorp; plus (minus)
6. Any unusual losses (gains) deducted (added) in calculating
consolidated net income (loss). (Unusual items are intended to include
transactions considered outside the ordinary course of business. EBITDA will be
adjusted to eliminate the effects, if any, of such
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transactions, the intent being to calculate EBITDA as if such
transactions had not occurred; plus (minus)
7. Any compensation expense (income) deducted (added) in calculating
consolidated net income (loss) attributable to transactions involving equity
securities of Holdings or its subsidiaries.
The Executive and his representative shall be provided reasonable
opportunity to review the computation of EBITDA and reasonable access to the
data and information supporting much computation, but Holding's Board of
Director's determination shall be conclusive and binding.
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EXHIBIT 2
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LIST OF CURRENT EMPLOYEE BENEFITS
---------------------------------
Term Life Insurance
Health/Dental Insurance
Long Term Disability Insurance
Accidental Death & Dismemberment Insurance
Travel Insurance
401(k) Savings Plan
Relocation Benefits
Company Car per Policy
Vacation per Policy
Laptop Computer
Cellular Telephone
Internet E-Mail and Web Surfing Account
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EXHIBIT 3
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2002 XXXXXX PERCS
[TO BE PROVIDED]
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