EXHIBIT 10(i)
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of November 9, 2001 between Xxxxxx X.
Xxxxxxx (the "Executive") and Xxxxxxxx, Inc., a Delaware corporation (the
"Company").
WHEREAS, the Company is engaged primarily in the business of
providing analytical services to determine personal exposure to
occupational and environmental radiation hazards;
WHEREAS, the Executive currently serves as the Vice President -
Operations of the Company;
WHEREAS, the Executive's abilities and services are unique and
essential to the prospects of the Company; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement to provide for the continued employment of the Executive by the
Company upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. EMPLOYMENT; TERM.
(a) EMPLOYMENT. The Company hereby employs the Executive,
and the Executive hereby agrees to be employed by the Company, upon the
terms and subject to the conditions contained in this Agreement.
(b) TERM. The term of this Agreement (the "Term") shall
commence on the date hereof and shall continue indefinitely thereafter
until terminated pursuant to Section 4 hereof. As used herein, the term
"Employment Period" shall mean the period commencing on the date hereof and
ending on the date of termination of the term hereof or Executive's
employment with the Company pursuant to Section 4 hereof.
2. POSITION; DUTIES; RESPONSIBILITIES.
(a) POSITION AND DUTIES. The Company shall employ the
Executive as the Vice President - Operations of the Company. The Executive
shall faithfully and loyally perform to the best of his abilities all the
duties reasonably assigned to him hereunder, shall devote such business
time, attention and effort to the affairs of the Company as is reasonably
necessary for the proper performance of such duties and shall use his
reasonable best efforts to promote the interests of the Company.
Notwithstanding the foregoing, the Executive may serve as a director,
officer or paid consultant of business corporations other than the Company
or civic or community organizations or entities, provided that such
activities do not violate the terms of any noncompetition agreement between
the Executive and the Company and such activities are approved prior to the
commencement thereof by the Chairman of the Board of Directors of the
Company (the "Board") or the President of the Company.
(b) RESPONSIBILITIES. The Executive shall have
responsibility and authority for the formulation and execution of the
policies relating to processing and other technical operations-related
functions of the Company and such other responsibilities and authorities as
are customarily exercisable by an executive officer with oversight
responsibility for processing and other technical operations, subject in
each case to the general supervision and direction of the Board, the
Chairman of the Board or the President of the Company.
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3. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Company
shall pay to the Executive an annual base salary at the rate of $ 142,000
per annum, payable in accordance with the Company's executive payroll
policy. Such base salary shall be reviewed annually, commencing January 1,
2002, and may be increased (but shall not be decreased), as determined by
the Company's Compensation Committee. The Executive's base salary, as
increased hereunder, is referred to herein as the "Base Salary."
(b) ANNUAL PERFORMANCE BONUS. In the discretion of the
Company's Compensation Committee, the Executive shall be eligible to
receive an annual performance bonus payable in cash for each full or
partial fiscal year of the Company during the Employment Period in
accordance with the Company's Incentive Compensation Plan For Executive
Officers.
(c) STOCK OPTIONS. In the discretion of the Company's
Compensation Committee, the Executive shall be eligible to receive from
time to time during the Employment Period options to purchase shares of
Company common stock ("Common Stock") pursuant to the terms of the
Xxxxxxxx, Inc. Equity Plan.
(d) SUPPLEMENTAL KEY EXECUTIVE RETIREMENT PLAN. In addition
to the compensation and benefits to which the Executive is entitled
hereunder, the Executive shall be entitled during the Employment Period to
participate in the Company's Supplemental Key Executive Retirement Plan
(the "Supplemental Retirement Plan") in accordance with its terms.
(e) REIMBURSEMENT OF EXPENSES. The Company shall reimburse
the Executive for all expenses necessarily and reasonably incurred by him
during the Employment Period in connection with the business of the
Company, upon presentation of proper receipts or other proof of expenditure
and subject to such reasonable guidelines or limitations provided to the
Executive and applied prospectively, as established by the Company.
(f) PARTICIPATION IN BENEFIT PLANS. During the Employment
Period, the Executive shall be entitled to participate in any profit
sharing plan, retirement plan, group life insurance plan or other insurance
plan or medical expense plan maintained by the Company for its senior
executives generally.
4. TERMINATION.
(a) DEATH. Upon the death of the Executive, this Agreement
shall automatically terminate and all rights of the Executive and his
heirs, executors and administrators to compensation and other benefits
hereunder shall cease, except for (i) compensation which shall have accrued
to the date of death, including accrued Base Salary, prorated Bonus (based
on the same percentage of Base Salary as the average annual Bonuses paid to
the Executive for the three fiscal years of the Company preceding the
Executive's death) and any amounts payable pursuant to the Supplemental
Retirement Plan and (ii) the rights to indemnification under Section 5
hereof.
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(b) DISABILITY. The Company may, at its option, terminate
this Agreement upon written notice to the Executive if the Executive,
because of physical or mental incapacity or disability, fails in any
material respect to perform the services required of him hereunder for a
continuous period of 180 days. Upon such termination, all obligations of
the Company hereunder shall cease, except for (i) compensation which shall
have accrued to the date of termination, including accrued Base Salary,
prorated Bonus (based on the same percentage of Base Salary as the average
annual Bonuses paid to the Executive for the three fiscal years of the
Company preceding the termination of this Agreement pursuant to this
Section 4(b)) and any amounts payable pursuant to the Supplemental
Retirement Plan, and (ii) the rights to indemnification under Section 5
hereof. In the event of any dispute regarding the existence of the
Executive's incapacity hereunder, the matter shall be resolved by the
determination of a majority of three physicians qualified to practice
medicine in the state of the Executive's residence, one to be selected by
each of the Executive and the Board and the third to be selected by such
two designated physicians. For this purpose, the Executive shall submit to
appropriate medical examinations.
(c) CAUSE. (i) The Company may, at its option, terminate
the Executive's employment under this Agreement for "Cause" (as hereinafter
defined). A termination for Cause shall not take effect until and unless
the Company complies with this Section 4(c)(i). The Executive shall be
given written notice by the Company of the intention to terminate his
employment hereunder for Cause (the "Cause Notice"). The Cause Notice
shall state the particular action(s) or inaction(s) giving rise to
termination for Cause.
(ii) As used in this Agreement, the term "Cause" shall mean
any one or more of the following, in any case as determined to have
occurred by not less than two-thirds of the directors then serving on the
Board:
(A) the Executive's refusal to perform specific
directives of the Board which are consistent with the scope and nature of
the Executive's duties and responsibilities as set forth herein or a
material violation by Executive of the policies, procedures or rules of the
Company;
(B) the Executive's commission or conviction of a
felony or of any act involving fraud, embezzlement, theft or
misrepresentation;
(C) any gross or willful misconduct of the Executive
resulting in substantial loss to the Company or substantial damage to the
Company's business or reputation; or
(D) any breach by the Executive of any noncompetition
agreement between the Executive and the Company.
(iii) The exercise of the right of the Company to terminate
this Agreement pursuant to this Section 4(c) shall not abrogate the rights
or remedies of the Company in respect of the breach giving rise to such
termination.
(iv) If the Company terminates the Executive's employment for
Cause, he shall be entitled to:
(A) accrued Base Salary through the date of the
termination of his employment;
(B) any amounts owing but not yet paid pursuant to
Section 3(e); and
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(C) other or additional benefits to the extent required
by any applicable plans and programs of the Company.
(v) Notwithstanding anything to the contrary contained in
this Agreement, if, following a termination of the Executive's employment
for Cause, a court of competent jurisdiction, in a final determination,
determines that the Executive was not guilty of the conduct that formed the
basis for the termination, the Executive shall be entitled to the payments
and the economic equivalent of the benefits he would have received had his
employment been terminated by the Company without Cause.
(d) TERMINATION WITHOUT CAUSE. If, during the Employment Period,
the Company terminates the employment of the Executive hereunder for any
reason other than a reason set forth in Section 4(a), 4(b) or 4(c):
(i) concurrent with such termination, the Company shall pay
to the Executive an amount equal to his Base Salary, prorated Bonus (based
on the same percentage of Base Salary as the average annual Bonuses paid to
the Executive for the three fiscal years of the Company preceding such
termination of employment) and any amounts payable pursuant to the
Supplemental Retirement Plan, in each case accrued through the date of
termination;
(ii) the Company shall continue to pay the Executive his Base
Salary, Bonus (based on the same percentage of Base Salary as the average
annual Bonuses paid to the Executive for the three fiscal years of the
Company preceding such termination of employment) and all other benefits
which would otherwise be payable hereunder for a period of twelve months
following such termination; PROVIDED, HOWEVER, that if, prior to the end of
such twelve-month period, the Executive shall obtain employment with
another employer, the amounts otherwise payable pursuant to this clause
(ii) shall be reduced by the amount of compensation earned by the Executive
from his new employment during such period (except that in no event shall
any such reduction result in the Executive receiving an amount pursuant to
this clause (ii) that would be less than the amount the Executive would
have earned if his Base Salary, Bonus and other benefits had been continued
for a period of six months following such termination);
(iii) all of the Executive's options to purchase Common Stock
shall be immediately 100% exercisable;
(iv) the Executive shall be entitled to any amounts owing but
not yet paid pursuant to Section 3(e); and
(v) the Executive shall be entitled to his rights to
indemnification under Section 5 hereof.
(e) TERMINATION FOR GOOD REASON. (i) If, during the Employment
Period, the Executive terminates his employment hereunder for "Good Reason"
(as such term is defined in Section 4(e)(ii) hereof, he shall be entitled
to all of the payments and benefits specified by Sections 4(d)(i) through
4(d)(v) hereof, inclusive.
(ii) For purposes of this Agreement, "Good Reason" shall mean,
without the Executive's express written consent, the occurrence of any one
or more of the following events:
(A) a material breach of this Agreement by the Company;
(B) the failure to elect or re-elect the Executive to
any position that is at least substantially comparable or more favorable to
the positions described in Section 2(a) hereof, removal of the Executive
from any such position or any change in the Executive's responsibilities
described in Section 2(b) in any respect which is materially adverse to the
Executive;
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(C) a diminution of any of the Executive's significant
duties or the assignment to the Executive of any duties inconsistent with
his duties or the material impairment of the Executive's ability to
function in the positions described in Section 2(a) hereof, in each case
only after the Company shall have had an opportunity to cure (any such cure
to be effected within 30 days after appropriate written notice of the basis
for Good Reason is given to the Company by the Executive);
(D) a material reduction of any benefit enjoyed by the
Executive or the failure to continue the Executive's participation in any
incentive compensation plan, unless a plan providing a substantially
similar economic opportunity is substituted or all senior executives suffer
a substantially similar reduction or failure;
(E) the relocation of the Executive's office to a
location more than 50 miles from Glenwood, Illinois; or
(F) the failure of the Company to obtain the assumption
in writing of its obligation to perform this Agreement by any successor to
all or substantially all of the assets of the Company within 15 days after
a merger, consolidation, sale of assets or similar transaction.
(f) VOLUNTARY TERMINATION. If, during the Employment Period, the
Executive voluntarily terminates his employment hereunder for any reason
other than Good Reason, he shall be entitled to the payments specified by
Sections 4(c)(iv)(A) through 4(c)(iv)(C) hereof, inclusive.
5. INDEMNIFICATION. To the fullest extent permitted by law, the
Certificate of Incorporation of the Company, the By-laws of the Company or
any indemnification agreement entered into between the Company and the
Executive, the Executive (and his heirs, executors and administrators)
shall be indemnified by the Company and its successors and assigns. The
obligations of the Company pursuant to this Section 5 shall survive the
termination of the Employment Period, except as otherwise provided herein.
6. INSURANCE. The Company may, at its election and for its
benefit, insure the Executive against disability, accidental loss or death
and the Executive shall submit to such physical examinations and supply
such information as may be required in connection therewith.
7. ASSIGNMENT. The rights and benefits of the Executive hereunder
shall not be assignable, whether by voluntary or involuntary assignment or
transfer. This Agreement shall be binding upon, and inure to the benefit
of, the successors and assigns of the Company, and the heirs, executors and
administrators of the Executive, and shall be assignable by the Company to
any entity acquiring substantially all of the assets of the Company,
whether by merger, consolidation, sale of assets or similar transaction.
8. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and personally delivered,
sent by certified or registered mail or sent by overnight courier service
as follows: if to the Executive, to his address as set forth in the
records of the Company, and if to the Company, to the address of its
principal executive offices, attention: President, with a copy to Xxxxx X.
Xxxxxx, Xxxxxx Xxxxxx Xxxxx & Xxxx, Bank Xxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, or to any other address designated by any party hereto by notice
similarly given.
9. WAIVER OF BREACH. A waiver by the Company or the Executive of
any breach of any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any other or subsequent breach by
the other party.
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10. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof. This Agreement
may be modified only by an agreement in writing signed by the parties
hereto.
11. COSTS. In the event that a dispute shall arise between the
parties hereto with respect to any term or provision of this Agreement or
the subject matter hereof, all costs and expenses (including attorney fees)
incurred by the Company or the Executive associated with such dispute shall
be borne by the respective party incurring such costs and expenses;
PROVIDED, HOWEVER, that if such dispute is ultimately determined in favor
of Executive by a court of competent jurisdiction, then the Company shall
be required to reimburse the Executive for up to an aggregate $100,000 of
such costs and expenses actually incurred by the Executive in connection
with such dispute.
12. APPLICABLE LAW. The terms of this Agreement shall be governed
by and construed in accordance with the internal laws (as opposed to the
conflict of laws provisions) of the State of Illinois.
13. COMPLETE AGREEMENT. This Agreement supersedes all other prior
agreements between the Executive and the Company concerning the Executive's
employment with the Company, and none of such agreements shall be of any
force or effect whatsoever; provided, however, that nothing contained
herein shall be deemed to limit or otherwise affect the provisions of any
noncompetition agreement or code of conduct arrangement between the
Executive and the Company or the provisions of any other agreement or
arrangement between the Executive and the Company that is unrelated to the
subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXXXXX, INC.
By ____________________________
Xxxxx X. X'Xxxxxxx,
Vice President & Treasurer
EXECUTIVE:
________________________________
Xxxxxx X. Xxxxxxx
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of November 9, 2001 between Xxxxxx X.
Xxxxxxxxx (the "Executive") and Xxxxxxxx, Inc., a Delaware corporation (the
"Company").
WHEREAS, the Company is engaged primarily in the business of
providing analytical services to determine personal exposure to
occupational and environmental radiation hazards;
WHEREAS, the Executive currently serves as the Vice President -
International of the Company;
WHEREAS, the Executive's abilities and services are unique and
essential to the prospects of the Company; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement to provide for the continued employment of the Executive by the
Company upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. EMPLOYMENT; TERM.
(a) EMPLOYMENT. The Company hereby employs the Executive, and
the Executive hereby agrees to be employed by the Company, upon the terms
and subject to the conditions contained in this Agreement.
(b) TERM. The term of this Agreement (the "Term") shall
commence on the date hereof and shall continue indefinitely thereafter
until terminated pursuant to Section 4 hereof. As used herein, the term
"Employment Period" shall mean the period commencing on the date hereof and
ending on the date of termination of the term hereof or Executive's
employment with the Company pursuant to Section 4 hereof.
2. POSITION; DUTIES; RESPONSIBILITIES.
(a) POSITION AND DUTIES. The Company shall employ the
Executive as the Vice President - International of the Company. The
Executive shall faithfully and loyally perform to the best of his abilities
all the duties reasonably assigned to him hereunder, shall devote such
business time, attention and effort to the affairs of the Company as is
reasonably necessary for the proper performance of such duties and shall
use his reasonable best efforts to promote the interests of the Company.
Notwithstanding the foregoing, the Executive may serve as a director,
officer or paid consultant of business corporations other than the Company
or civic or community organizations or entities, provided that such
activities do not violate the terms of any noncompetition agreement between
the Executive and the Company and such activities are approved prior to the
commencement thereof by the Chairman of the Board of Directors of the
Company (the "Board") or the President of the Company.
(b) RESPONSIBILITIES. The Executive shall have
responsibility and authority for the formulation and execution of the
policies relating to the international operations of the Company and such
other responsibilities and authorities as are customarily exercisable by an
executive officer with oversight responsibility for international
operations, subject in each case to the general supervision and direction
of the Board, the Chairman of the Board or the President of the Company.
1
3. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Company
shall pay to the Executive an annual base salary at the rate of $ 125,000
per annum, payable in accordance with the Company's executive payroll
policy. Such base salary shall be reviewed annually, commencing January 1,
2002, and may be increased (but shall not be decreased), as determined by
the Company's Compensation Committee. The Executive's base salary, as
increased hereunder, is referred to herein as the "Base Salary."
(b) ANNUAL PERFORMANCE BONUS. In the discretion of the
Company's Compensation Committee, the Executive shall be eligible to
receive an annual performance bonus payable in cash for each full or
partial fiscal year of the Company during the Employment Period in
accordance with the Company's Incentive Compensation Plan For Executive
Officers.
(c) STOCK OPTIONS. In the discretion of the Company's
Compensation Committee, the Executive shall be eligible to receive from
time to time during the Employment Period options to purchase shares of
Company common stock ("Common Stock") pursuant to the terms of the
Xxxxxxxx, Inc. Equity Plan.
(d) SUPPLEMENTAL KEY EXECUTIVE RETIREMENT PLAN. In addition
to the compensation and benefits to which the Executive is entitled
hereunder, the Executive shall be entitled during the Employment Period to
participate in the Company's Supplemental Key Executive Retirement Plan
(the "Supplemental Retirement Plan") in accordance with its terms.
(e) REIMBURSEMENT OF EXPENSES. The Company shall reimburse
the Executive for all expenses necessarily and reasonably incurred by him
during the Employment Period in connection with the business of the
Company, upon presentation of proper receipts or other proof of expenditure
and subject to such reasonable guidelines or limitations provided to the
Executive and applied prospectively, as established by the Company.
(f) PARTICIPATION IN BENEFIT PLANS. During the Employment
Period, the Executive shall be entitled to participate in any profit
sharing plan, retirement plan, group life insurance plan or other insurance
plan or medical expense plan maintained by the Company for its senior
executives generally.
4. TERMINATION.
(a) DEATH. Upon the death of the Executive, this Agreement
shall automatically terminate and all rights of the Executive and his
heirs, executors and administrators to compensation and other benefits
hereunder shall cease, except for (i) compensation which shall have accrued
to the date of death, including accrued Base Salary, prorated Bonus (based
on the same percentage of Base Salary as the average annual Bonuses paid to
the Executive for the three fiscal years of the Company preceding the
Executive's death) and any amounts payable pursuant to the Supplemental
Retirement Plan and (ii) the rights to indemnification under Section 5
hereof.
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(b) DISABILITY. The Company may, at its option, terminate
this Agreement upon written notice to the Executive if the Executive,
because of physical or mental incapacity or disability, fails in any
material respect to perform the services required of him hereunder for a
continuous period of 180 days. Upon such termination, all obligations of
the Company hereunder shall cease, except for (i) compensation which shall
have accrued to the date of termination, including accrued Base Salary,
prorated Bonus (based on the same percentage of Base Salary as the average
annual Bonuses paid to the Executive for the three fiscal years of the
Company preceding the termination of this Agreement pursuant to this
Section 4(b)) and any amounts payable pursuant to the Supplemental
Retirement Plan, and (ii) the rights to indemnification under Section 5
hereof. In the event of any dispute regarding the existence of the
Executive's incapacity hereunder, the matter shall be resolved by the
determination of a majority of three physicians qualified to practice
medicine in the state of the Executive's residence, one to be selected by
each of the Executive and the Board and the third to be selected by such
two designated physicians. For this purpose, the Executive shall submit to
appropriate medical examinations.
(c) CAUSE. (i) The Company may, at its option, terminate
the Executive's employment under this Agreement for "Cause" (as hereinafter
defined). A termination for Cause shall not take effect until and unless
the Company complies with this Section 4(c)(i). The Executive shall be
given written notice by the Company of the intention to terminate his
employment hereunder for Cause (the "Cause Notice"). The Cause Notice
shall state the particular action(s) or inaction(s) giving rise to
termination for Cause.
(ii) As used in this Agreement, the term "Cause" shall mean
any one or more of the following, in any case as determined to have
occurred by not less than two-thirds of the directors then serving on the
Board:
(A) the Executive's refusal to perform specific
directives of the Board which are consistent with the scope and nature of
the Executive's duties and responsibilities as set forth herein or a
material violation by Executive of the policies, procedures or rules of the
Company;
(B) the Executive's commission or conviction of a
felony or of any act involving fraud, embezzlement, theft or
misrepresentation;
(C) any gross or willful misconduct of the Executive
resulting in substantial loss to the Company or substantial damage to the
Company's business or reputation; or
(D) any breach by the Executive of any noncompetition
agreement between the Executive and the Company.
(iii) The exercise of the right of the Company to terminate
this Agreement pursuant to this Section 4(c) shall not abrogate the rights
or remedies of the Company in respect of the breach giving rise to such
termination.
(iv) If the Company terminates the Executive's employment for
Cause, he shall be entitled to:
(A) accrued Base Salary through the date of the
termination of his employment;
(B) any amounts owing but not yet paid pursuant to
Section 3(e); and
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(C) other or additional benefits to the extent required
by any applicable plans and programs of the Company.
(v) Notwithstanding anything to the contrary contained in
this Agreement, if, following a termination of the Executive's employment
for Cause, a court of competent jurisdiction, in a final determination,
determines that the Executive was not guilty of the conduct that formed the
basis for the termination, the Executive shall be entitled to the payments
and the economic equivalent of the benefits he would have received had his
employment been terminated by the Company without Cause.
(d) TERMINATION WITHOUT CAUSE. If, during the Employment
Period, the Company terminates the employment of the Executive hereunder
for any reason other than a reason set forth in Section 4(a), 4(b) or 4(c):
(i) concurrent with such termination, the Company shall
pay to the Executive an amount equal to his Base Salary, prorated Bonus
(based on the same percentage of Base Salary as the average annual Bonuses
paid to the Executive for the three fiscal years of the Company preceding
such termination of employment) and any amounts payable pursuant to the
Supplemental Retirement Plan, in each case accrued through the date of
termination;
(ii) the Company shall continue to pay the Executive his
Base Salary, Bonus (based on the same percentage of Base Salary as the
average annual Bonuses paid to the Executive for the three fiscal years of
the Company preceding such termination of employment) and all other
benefits which would otherwise be payable hereunder for a period of twelve
months following such termination; PROVIDED, HOWEVER, that if, prior to the
end of such twelve-month period, the Executive shall obtain employment with
another employer, the amounts otherwise payable pursuant to this clause
(ii) shall be reduced by the amount of compensation earned by the Executive
from his new employment during such period (except that in no event shall
any such reduction result in the Executive receiving an amount pursuant to
this clause (ii) that would be less than the amount the Executive would
have earned if his Base Salary, Bonus and other benefits had been continued
for a period of six months following such termination);
(iii)all of the Executive's options to purchase Common
Stock shall be immediately 100% exercisable;
(iv) the Executive shall be entitled to any amounts
owing but not yet paid pursuant to Section 3(e); and
(v) the Executive shall be entitled to his rights to
indemnification under Section 5 hereof.
(e) TERMINATION FOR GOOD REASON. (i) If, during the
Employment Period, the Executive terminates his employment hereunder for
"Good Reason" (as such term is defined in Section 4(e)(ii) hereof, he shall
be entitled to all of the payments and benefits specified by Sections
4(d)(i) through 4(d)(v) hereof, inclusive.
(ii) For purposes of this Agreement, "Good Reason" shall mean,
without the Executive's express written consent, the occurrence of any one
or more of the following events:
(A) a material breach of this Agreement by the Company;
(B) the failure to elect or re-elect the Executive to
any position that is at least substantially comparable or more favorable to
the positions described in Section 2(a) hereof, removal of the Executive
from any such position or any change in the Executive's responsibilities
described in Section 2(b) in any respect which is materially adverse to the
Executive;
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(C) a diminution of any of the Executive's significant
duties or the assignment to the Executive of any duties inconsistent with
his duties or the material impairment of the Executive's ability to
function in the positions described in Section 2(a) hereof, in each case
only after the Company shall have had an opportunity to cure (any such cure
to be effected within 30 days after appropriate written notice of the basis
for Good Reason is given to the Company by the Executive);
(D) a material reduction of any benefit enjoyed by the
Executive or the failure to continue the Executive's participation in any
incentive compensation plan, unless a plan providing a substantially
similar economic opportunity is substituted or all senior executives suffer
a substantially similar reduction or failure;
(E) the relocation of the Executive's office to a
location more than 50 miles from Glenwood, Illinois; or
(F) the failure of the Company to obtain the assumption
in writing of its obligation to perform this Agreement by any successor to
all or substantially all of the assets of the Company within 15 days after
a merger, consolidation, sale of assets or similar transaction.
(f) VOLUNTARY TERMINATION. If, during the Employment Period,
the Executive voluntarily terminates his employment hereunder for any
reason other than Good Reason, he shall be entitled to the payments
specified by Sections 4(c)(iv)(A) through 4(c)(iv)(C) hereof, inclusive.
5. INDEMNIFICATION. To the fullest extent permitted by law, the
Certificate of Incorporation of the Company, the By-laws of the Company or
any indemnification agreement entered into between the Company and the
Executive, the Executive (and his heirs, executors and administrators)
shall be indemnified by the Company and its successors and assigns. The
obligations of the Company pursuant to this Section 5 shall survive the
termination of the Employment Period, except as otherwise provided herein.
6. INSURANCE. The Company may, at its election and for its
benefit, insure the Executive against disability, accidental loss or death
and the Executive shall submit to such physical examinations and supply
such information as may be required in connection therewith.
7. ASSIGNMENT. The rights and benefits of the Executive hereunder
shall not be assignable, whether by voluntary or involuntary assignment or
transfer. This Agreement shall be binding upon, and inure to the benefit
of, the successors and assigns of the Company, and the heirs, executors and
administrators of the Executive, and shall be assignable by the Company to
any entity acquiring substantially all of the assets of the Company,
whether by merger, consolidation, sale of assets or similar transaction.
8. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and personally delivered,
sent by certified or registered mail or sent by overnight courier service
as follows: if to the Executive, to his address as set forth in the
records of the Company, and if to the Company, to the address of its
principal executive offices, attention: President, with a copy to Xxxxx X.
Xxxxxx, Xxxxxx Xxxxxx Xxxxx & Xxxx, Bank Xxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, or to any other address designated by any party hereto by notice
similarly given.
9. WAIVER OF BREACH. A waiver by the Company or the Executive of
any breach of any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any other or subsequent breach by
the other party.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof. This Agreement
may be modified only by an agreement in writing signed by the parties
hereto.
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11. COSTS. In the event that a dispute shall arise between the
parties hereto with respect to any term or provision of this Agreement or
the subject matter hereof, all costs and expenses (including attorney fees)
incurred by the Company or the Executive associated with such dispute shall
be borne by the respective party incurring such costs and expenses;
PROVIDED, HOWEVER, that if such dispute is ultimately determined in favor
of Executive by a court of competent jurisdiction, then the Company shall
be required to reimburse the Executive for up to an aggregate $100,000 of
such costs and expenses actually incurred by the Executive in connection
with such dispute.
12. APPLICABLE LAW. The terms of this Agreement shall be governed
by and construed in accordance with the internal laws (as opposed to the
conflict of laws provisions) of the State of Illinois.
13. COMPLETE AGREEMENT. This Agreement supersedes all other prior
agreements between the Executive and the Company concerning the Executive's
employment with the Company, and none of such agreements shall be of any
force or effect whatsoever; provided, however, that nothing contained
herein shall be deemed to limit or otherwise affect the provisions of any
noncompetition agreement or code of conduct arrangement between the
Executive and the Company or the provisions of any other agreement or
arrangement between the Executive and the Company that is unrelated to the
subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
XXXXXXXX, INC.
By ____________________________
Xxxxx X. X'Xxxxxxx,
Vice President & Treasurer
EXECUTIVE:
________________________________
Xxxxxx X. Xxxxxxxxx
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