EXHIBIT (10.4)
Employment Contract - Xxxxx X. Xxxxxx
28
EMPLOYMENT AGREEMENT
AGREEMENT, dated February 8, 1998, between CONSUMER PROGRAMS
INCORPORATED, a Missouri corporation (the "Corporation"), and Xxxxx
Xxxxxx (the "Executive").
WHEREAS, the Corporation currently employs the Executive in
the capacity of Executive Vice President, Finance-Chief Financial
Officer, and the Executive is one of the key executives of the
Corporation;
WHEREAS, there is much competition for the type of business
performed by the Corporation in the locales in which the
Corporation operates, and the Corporation and Executive acknowledge
that the Corporation is active in the product markets in which it
competes;
WHEREAS, Executive, during his or her employment, has been and
will be entrusted with confidential information;
WHEREAS, Executive and the Corporation recognize and
acknowledge that, to ensure the continued growth and stability of
the Corporation, it is necessary to obtain an agreement from
Executive not to compete with the Corporation and not to disclose
confidential information of the Corporation; and
WHEREAS, the Corporation desires that the Executive continue
in the employ of the Corporation as a result of his or her
experience with the Corporation and his or her potential for making
future contributions to the Corporation, and the Executive is
willing to make a commitment to remain in such employ upon the
terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliated Companies" shall mean any corporation (or
other business entity) controlling, controlled by or under common
control with the Corporation.
(b) "Beneficiary" shall mean the person designated in
writing by the Executive as his or her beneficiary under this
Agreement, or in the absence of such designation, his or her
estate.
(c) Cause shall mean:
(1) prior to a Change of Control, (i) conduct or
activity of the Executive materially detrimental to the
Corporation's reputation or business (including financial)
operations; (ii) gross or habitual neglect or breach of duty or
misconduct of the Executive in discharging the duties of his or her
position; or (iii) prolonged absence by the Executive from
his or her duties (other than on account of illness or disability)
without the consent of the Corporation.
(2) after a Change of Control, (i) an act or acts of
dishonesty on the Executive's part which are intended to result in
his or her substantial personal enrichment at the expense of the
Corporation; (ii) any material violation by the Executive of his or
her obligations and covenants pursuant to this Agreement which is
demonstrably willful and deliberate on the Executive's part and
which results in material injury to the Corporation; or (iii) the
conviction of Executive of a felony or of a crime involving moral
turpitude.
(d) A "Change of Control" shall mean a change in control of
a nature that would be required to be reported in response to Item
1(a) of the Current Report on Form 8-K, as in effect on the date
hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended ("Exchange Act") or would have been
required to be so reported but for the fact that such event had
been "previously reported" as that term is defined in Rule 12b-2 of
Regulation 12B of the Exchange Act unless the transactions that
give rise to the change in control are approved or ratified by a
majority of the members of the Incumbent Board of CPI Corp. who are
not employees of the Corporation; provided that, without
limitation, notwithstanding anything herein to the contrary, such
a change in control shall be deemed to have occurred if (a) any
Person is or becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
CPI Corp. representing 40% or more of the combined voting power of
CPI Corp.'s then outstanding securities ordinarily (apart from
rights accruing under special circumstances) having the right to
vote at elections of directors ("Voting Securities"), (b)
individuals who constitute the Board of CPI Corp. on the date
hereof (the "Incumbent Board") cease for any reason to constitute
at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election, or
nomination for election by CPI Corp.'s shareholders, was approved
by a vote of at least three-quarters of the directors comprising
the Incumbent Board (either by a specific vote or by approval of
the proxy statement of CPI Corp. in which such person is named as
a nominee for director, without objection to such nomination) shall
be, for purposes of this clause (b), considered as though such
person were a member of the Incumbent Board, or (c) approval by the
stockholders of CPI Corp. of a reorganization, merger or
consolidation, in each case, with respect to which persons who were
the stockholders of CPI Corp. immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own, directly or indirectly, more than 50% of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's then
outstanding voting securities, or a liquidation or dissolution of
CPI Corp. or of the sale of all or substantially all of the assets
of CPI Corp. For purposes of this Agreement, the term "Person"
shall mean and include any individual, corporation, partnership,
group, association or other "person," as such term is used in
Section 14(d) of the Exchange Act, other than CPI Corp., the
Corporation or an Affiliated Company or any employee benefit
plan(s) sponsored or maintained by the Corporation or any
Affiliated Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
may be amended from time to time.
(f) "Continuing Directors" shall have the meaning set forth
in Paragraph 3(G) of Article Ten of CPI Corp.'s Certificate of
Incorporation.
(g) "Fiscal Year" shall mean the Fiscal Year of the
Corporation.
(h) "Permanent Disability" shall mean the inability of
Executive to perform the services contemplated by Section 4 hereof
for a period of at least one hundred eighty (180) consecutive
calendar days or for thirty-five (35) weeks (whether or not
consecutive) in any twelve (12) month period on account of any
sickness, injury or other infirmity or disability.
(i) "Retirement" shall mean the Executive's voluntary or
involuntary termination of employment with the Corporation except
for termination on account of (A) Cause as defined in Subsection
6(b) hereof, (B) death or (C) Permanent Disability before attaining
age sixty-five (65).
(j) "Term of Employment" shall have the meaning set forth
in Section 3 hereof.
(k) "Vesting Percentage" shall mean the percentage of
Supplemental Retirement Benefits, death benefits, and disability
benefits in which Executive has a nonforfeitable interest (except
in the event of termination for Cause) based upon the number of
Years of Service Executive has completed, determined as follows:
COMPLETED YEARS VESTING
OF SERVICE PERCENTAGE
--------------- ----------
0 0%
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Notwithstanding anything herein to the contrary, if Executive's
employment with the Corporation terminates following a Change of
Control, unless such termination is for Cause, for purposes of
Subsections 5(g), 5(h), and 5(i) of this Agreement Executive shall
be deemed to have completed ten (10) Years of Service and his or
her Vesting Percentage shall be deemed to be 100%.
(l) "Year of Service" shall mean any Fiscal Year during
which the Executive has worked for the Corporation at least one
thousand (1,000) hours, including Fiscal Years prior to the
effective date of this Agreement.
2. EMPLOYMENT. The Corporation hereby employs and engages the
services of the Executive as one of its key executives initially in
the position of EXECUTIVE VICE PRESIDENT, FINANCE-CHIEF FINANCIAL
OFFICER of the Corporation for the Term of Employment set forth in
Section 3. The Executive agrees to serve the Corporation for the
Term of Employment as provided herein.
3. TERM OF EMPLOYMENT. The Executive's Term of Employment
shall be a period commencing on the date hereof and ending one (1)
year thereafter; provided, however, that upon the expiration of the
aforesaid period (the "Expiration Date") and upon each anniversary
of the Expiration Date, the Term of Employment shall automatically
be extended for an additional one (1) year period unless Executive
or the Corporation notifies the other in writing at least sixty
(60) days prior to the commencement of such one (1) year period of
an intention to terminate this Agreement. Notwithstanding anything
herein to the contrary, the Term of Employment shall terminate upon
Executive's death or Permanent Disability as set forth in
subsection 6(a) hereof or upon the Corporation's termination of
Executive's employment for Cause pursuant to subsection 6(b)
hereof.
4. POSITION AND DUTIES.
(a) Prior to a Change of Control, during the Term of
Employment, the Executive shall serve the Corporation in such
capacity as the Corporation may determine. After a Change of
Control, during the Term of Employment, the Executive's position,
authority and responsibilities, the type of work he or she is asked
to perform, and the status and stature of the people with whom he
or she is asked to work, shall be comparable to that existing with
respect to the Executive as of the date immediately prior to the
Change of Control, and after a Change of Control the Executive's
services shall be performed at the location where the Executive was
employed as of the date immediately prior to the Change of Control,
or at such other location as may be mutually agreed between the
Corporation and the Executive.
(b) The Executive agrees to devote his or her full business
time during normal business hours to the business and affairs of
the Corporation (except as otherwise provided herein) and to use
his or her best efforts to promote the interests of the Corporation
and its Affiliated Companies and to perform faithfully and
efficiently the responsibilities assigned to him or her in
accordance with the terms of this Agreement to the extent necessary
to discharge such responsibilities, except for (i) service on
corporate, civic or charitable boards or committees not
significantly interfering with the performance of such
responsibilities and (ii) periods of vacation and sick leave to
which he or she is entitled. It is expressly understood and agreed
that the Executive's continuing service on any boards and
committees with which he or she shall be connected, as a member or
otherwise, as of the date hereof, or any such service approved by
the Corporation during the Term of Employment, shall not be deemed
to interfere with the performance of the Executive's services to
the Corporation pursuant to this subparagraph 4(b).
5. COMPENSATION AND OTHER CONDITIONS OF EMPLOYMENT.
(a) BASE SALARY. During the Term of Employment, the
Executive shall receive an annual base salary (the "Base Salary"),
in equal installments payable weekly or at such other intervals as
salary is normally paid by the Corporation to its employees, at an
annual rate established by the Corporation and any Affiliated
Companies as of the date hereof. The Base Salary shall be reviewed
at least once each year and may be increased at any time and from
time to time by action of the Board of Directors of CPI Corp., any
committee thereof or any individual having authority to take such
action, in accordance with the Corporation's regular practices.
Any increase in the Base Salary shall not serve to limit or reduce
any other obligation of the Corporation hereunder, and after such
increase the Base Salary shall not be reduced from such increased
level.
(b) ANNUAL BONUS. After a Change of Control, in addition
to the Base Salary, the Executive shall be awarded for each Fiscal
Year during the Term of Employment an annual bonus (the "Annual
Bonus") (pursuant to any bonus plan or program of the Corporation,
any incentive plan or program of the Corporation, or otherwise) in
cash at least equal to the highest bonus paid or payable to the
Executive in respect of any of the Fiscal Years during the three
Fiscal Years immediately prior to the date of the Change of
Control. Prior to a Change of Control, the amount of the
Executive's Annual Bonus shall be determined in accordance with the
Corporation's regular practice.
(c) OTHER COMPENSATION PLANS. After a Change of Control,
in addition to the Base Salary and Annual Bonus payable as
hereinabove provided, during the Term of Employment, the Executive
shall be entitled to participate in all other compensation plans
and programs, including, without limitation, savings plans, stock
option plans, and retirement plans of the Corporation and its
Affiliated Companies (collectively, the "Savings Plans"), on a
basis at least equivalent to that provided by the Corporation and
its Affiliated Companies to the Executive under such programs
immediately prior to the date of the Change of Control. Prior to
a Change of Control, the Executive's entitlement to participate in
the Savings Plans shall be determined in accordance with the
Corporation's regular practice. Prior to a Change of Control,
nothing herein shall be construed to prevent the Corporation from
amending or altering any such plans in accordance with the terms
thereof. All agreements between the Corporation and the Executive
existing on the date hereof providing for special pension,
retirement or similar benefits are continued by this Agreement.
(d) BENEFIT PLANS. After a Change of Control, during the
Term of Employment, the Executive, his or her spouse, or his or her
dependents, as the case may be, shall be entitled to receive all
amounts which he or she, his or her spouse or his or her dependents
are or would have been entitled to receive as benefits under all
other benefit plans of the Corporation and its Affiliated
Companies, including, without limitation, medical, dental,
disability, group life, accidental death and travel accident
insurance plans and programs (collectively, the "Benefit Plans") on
a basis at least as favorable to the Executive as on the date
immediately prior to the date of the Change of Control. Prior to
a Change of Control, the Executive's and such other persons'
entitlement to participate in the Benefit Plans shall be determined
in accordance with the Corporation's regular practice.
(e) EXPENSES. During the Term of Employment, the Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with
the regular policies and procedures of the Corporation.
(f) OFFICE AND SUPPORT STAFF. After a Change of Control
the Executive shall be entitled to an office or offices of a size
and with furnishings and other appointments, and to secretarial and
other assistance, at least equal to those provided to the Executive
as of the date immediately prior to the date of the Change of
Control.
(g) DEATH BENEFITS. In the event of Executive's death
after completion of at least ten (10) Years of Service, unless (1)
Executive's employment with the Corporation was terminated for
Cause or (2) Executive (or his or her Beneficiary) is entitled to
receive Supplemental Retirement Benefits pursuant to subsection
5(i), the Corporation shall pay to Executive's Beneficiary an
annual death benefit equal to forty percent (40%) (but not to
exceed $150,000) of the highest annual Base Salary paid to
Executive from and after fiscal year 1997 (as defined in subsection
5(a) hereof) for the Fiscal Year of his or her termination of
employment with the Corporation, payable in equal monthly
installments, commencing with the month following the month of
Executive's death and ending with the two-hundred fortieth (240th)
month following the month of Executive's death. In the event that
Executive dies before age 65 but has not completed at least ten
(10) Years of Service with the Corporation, death benefits shall be
reduced to an amount equal to the benefits determined under the
preceding sentence multiplied by the Vesting Percentage applicable
to Executive.
(h) DISABILITY BENEFITS. In the event of Executive's
Permanent Disability prior to attaining age 65 and prior to
termination of employment with the Corporation, unless Executive's
employment with the Corporation was terminated for Cause, the
Corporation shall pay Executive annual disability benefits equal to
forty percent (40%) (but not to exceed $150,000) of the highest
annual Base Salary paid to Executive from and after fiscal year
1997 for the Fiscal Year in which the Executive terminated
employment with the Corporation, payable in equal monthly
installments, commencing with the month following the month in
which Executive terminated employment as a result of Permanent
Disability and ending on the earlier of (i) the month in which
Executive reaches age 65 or (ii) the month of his or her death. In
the event that at the time of Permanent Disability Executive has
not completed at least ten (10) Years of Service, the disability
benefits shall be reduced to an amount equal to the benefits
determined under the preceding sentence multiplied by the Vesting
Percentage applicable to Executive. Disability benefits pursuant
to this subsection (h) shall be reduced by any amounts paid to
Executive under the Corporation's long-term disability insurance
policy, but shall not be reduced for any payments received by
Executive from Social Security or from any disability insurance
coverage individually owned by Executive.
(i) SUPPLEMENTAL RETIREMENT BENEFITS.
(1) In the event of Executive's Retirement after
completion of at least ten (10) Years of Service, unless
Executive's employment with the Corporation was terminated for
Cause, the Corporation shall pay Executive retirement benefits for
twenty (20) years in an annual amount equal to forty percent (40%)
(but not to exceed $150,000) of the highest annual Base Salary paid
to Executive from and after fiscal year 1997 for the Fiscal Year of
his or her Retirement ("Supplemental Retirement Benefits"). In the
event of Executive's Retirement before completion of ten (10) Years
of Service, Corporation shall pay Executive retirement benefits on
the same terms as set forth in the preceding sentence except that
retirement benefits shall be reduced to an amount equal to
Supplemental Retirement Benefits multiplied by the Vesting
Percentage.
(2) Supplemental Retirement Benefits shall be payable
in two hundred forty (240) equal monthly installments commencing
with the month following the later of (i) the month of Executive's
Retirement or (ii) the month during which Executive reaches age
sixty-five (65). If Executive dies prior to the end of the two
hundred forty (240) month period during which Supplemental
Retirement Benefits are payable, Supplemental Retirement Benefits
shall be payable during the remainder of such 240-month period to
his or her Beneficiary.
(3) Notwithstanding anything herein to the contrary, in
the event of Executive's termination of employment with the
Corporation prior to attaining age 65 as a result of Permanent
Disability, if Executive attains age 65 and his or her employment
with the Corporation was not terminated for Cause, the Corporation
shall pay to Executive the Supplemental Retirement Benefits set
forth in this Subsection 5(i) in accordance with Executive's
Vesting Percentage, commencing as of the month following the month
in which Executive attains age 65; provided, however, that any
Supplemental Retirement Benefits paid pursuant to this sentence
shall be reduced by any amounts paid to Executive under the
Corporation's long-term disability insurance policy (but shall not
be reduced for any payments received by Executive from Social
Security or from any disability insurance coverage individually
owned by Executive) for the same period.
(j) SURVIVABILITY OF DEATH AND SUPPLEMENTAL RETIREMENT
BENEFITS. In the event of Executive's Retirement or death,
Executive's entitlement to death benefits pursuant to
Subsection 5(g) hereof and Supplemental Retirement Benefits
pursuant to Subsection 5(i) hereof shall survive the Term of
Employment and Executive or his or her Beneficiary shall be
entitled to such death benefits and Supplemental Retirement
Benefits based on the same terms and conditions as would have been
applicable had his or her death or Retirement, as the case may be,
occurred during the Term of Employment.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR PERMANENT DISABILITY. Except for the
obligations of the Corporation set forth in this Subsection 6(a),
this Agreement shall terminate automatically upon the Executive's
death or Permanent Disability. In the event of such termination,
the Corporation shall pay to the Executive's Beneficiary or, in the
event of Permanent Disability, the Executive or his or her legal
representative, all benefits and Base Salary accrued through the
date of termination, including, without limitation, amounts payable
under any plan referred to in Subsection 5(d) plus any benefits to
which Executive may be entitled pursuant to Subsection 5(g),
Subsection 5(h) or Subsection 5(i) hereof.
(b) CAUSE. The Corporation may terminate the Executive's
employment for Cause. If the Executive's employment is terminated
for Cause, the Corporation shall pay the Executive his or her full
accrued Base Salary through the effective date of the termination
of his or her employment (which shall be no earlier than the date
of receipt of notice thereof) at the rate in effect at the time of
such termination, and the Corporation shall have no further
obligations to the Executive under this Agreement.
(c) NOTIFICATION PRIOR TO ONE YEAR EXTENSION. Either
Executive or the Corporation may terminate this Agreement by
notifying the other party in writing of an intention to do so at
least sixty (60) days prior to the commencement of a one-year
extension period described in Section 3 hereof.
(d) PAYMENTS FOR INVOLUNTARY TERMINATION WITHOUT CAUSE.
(1) If prior to a Change of Control (i) the Corporation
terminates Executive's employment (other than for Cause pursuant to
subsection 6(b) hereof), or (ii) the Executive's employment
terminates by reason of the Corporation's termination of this
Agreement pursuant to subsection 6(c)hereof, the Corporation shall
pay Executive following such involuntary termination his or her
full accrued Base Salary through the date of termination of
employment plus an amount equal to fifty percent (50%) of
Executive's Base Salary for the fiscal year in which termination
occurs, payable in twenty-six (26) equal weekly installments or at
such other intervals as salary is normally paid by the Corporation
to its employees. The payment pursuant to this Subsection 6(d)(1)
and any payments to which Executive may be entitled pursuant to
Subsections 5(g), 5(h), and 5(i) shall be in full discharge of any
claims, actions, demands or damages of every nature and description
which Executive might have or might assert against the Corporation
or any Affiliated Company in connection with or arising from the
termination of Executive's employment or the termination of this
Agreement.
(2) If following a Change of Control (i) the
Corporation terminates Executive's employment (other than for Cause
pursuant to Subsection 6(b) hereof), or (ii) the Executive's
employment terminates by reason of the Corporation's termination of
this Agreement pursuant to subsection (c) hereof, the Corporation
shall, at the time of such involuntary termination, make a lump sum
cash payment to Executive equal to 200% of his or her Base Salary
for the Fiscal Year of termination. In addition to the payment
pursuant to this Subsection 6(d)(2) and any payments to which
Executive may be entitled pursuant to Subsections 5(g), 5(h) and
5(i), Executive shall be entitled to all remedies available under
this Agreement or at law in respect of any damages suffered by
Executive as a result of an involuntary termination of employment
without Cause.
7. GROSS-UP FOR PARACHUTE TAX.
(a) GENERAL. In the event that following a Change of
Control Executive becomes entitled to any payments (whether
pursuant to this Employment Agreement or any other plan,
arrangement or agreement) from the Corporation in the nature of
compensation ("Parachute Payments") that in the opinion of a
certified public accounting firm (selected in the manner set forth
in Subsection 7(b)) or that under the provisions of a notice of
assessment from the Internal Revenue Service causes imposition of
the tax under Section 4999 of the Code or any similar tax that may
hereafter be imposed (the "Excise Tax"), the Corporation shall pay
Executive, at the time specified in Subsection 7(d), the Gross-Up
Payment (as determined in accordance with Subsection 7(c)).
(b) SELECTION OF C.P.A. Within fifteen (15) days after any
termination of Executive's employment following a Change of
Control, the majority of the Continuing Directors as of the date
immediately prior to the Change of Control shall select a certified
public accounting firm (the "C.P.A.") to determine the amount, if
any, of the Excise Tax and the amount, if any, of the Gross-Up
Payments.
(c) AMOUNT OF GROSS-UP PAYMENTS.
(1) The Gross-Up Payments shall be in an amount such
that the net amount retained by Executive with respect to the
Parachute Payments and Gross-Up Payments, after deduction of any
Excise Tax to which the Parachute Payments may be subject and any
federal, state, and local income taxes and Excise Tax upon the
Gross-Up Payments, shall be equal to the gross amount of the
Parachute Payments.
(2) For purposes of determining the amount of the
Gross-Up Payments, Executive shall be deemed to pay federal income
taxes at the applicable rate of federal income taxation for the
calendar year in which the Gross-Up Payment is to be made and state
and local income taxes at the applicable rate of taxation for the
calendar year in which the Gross-Up Payment is to be made.
(3) In the event that the Excise Tax is subsequently
determined to exceed the amount taken into account at the time the
Gross-Up Payment is made pursuant to Subsection 7(d)(1) hereof
(including any excess attributable to any Parachute Payments the
existence or amount of which could not be accurately determined at
the time of the Gross-Up Payment), the Corporation shall make an
additional Gross-Up Payment in respect of such excess (plus any
interest and addition to tax payable with respect to such excess)
within fifteen (15) days after the amount of such excess is
determined by the C.P.A. or by the Internal Revenue Service (the
"IRS") in a notice of assessment.
(d) TIMING OF GROSS-UP PAYMENTS. Gross-Up Payments other
than Gross-Up Payments pursuant to Subsection 7(c)(3) shall be paid
not later than forty-five (45) days following payment of any
Parachute Payments to which the Gross-Up Payments are attributable;
provided, however, that if the amount of such Gross-Up Payment or
portion thereof cannot be finally determined on or before such day,
the Corporation shall pay to Executive on such day an estimate, as
determined in good faith by the Corporation, of the minimum amount
of such payments and shall pay the remainder of such payments
(together with interest at the applicable federal rate provided in
Section l274(d) of the Code) as soon as the amount thereof can be
determined by the C.P.A., but in no event later than forty-five
(45) days after payment of such Parachute Payments.
(e) CORPORATION'S RIGHT TO DESIGNATE TAX REPRESENTATIVE;
ASSIGNMENT OF REFUND PROCEEDS. If the IRS proposes an assessment
of the Excise Tax against Executive or proposes an additional
assessment of Excise Tax in excess of the amount previously
reported by Executive:
(1) Executive shall within five (5) days after receipt
from the IRS of notice of the proposed Excise Tax assessment notify
the Corporation in writing and furnish the Corporation with copies
of all correspondence from the IRS relating to the proposed Excise
Tax assessment.
(2) The Corporation shall be authorized to designate an
attorney and/or accountant (the "Tax Representative") to serve as
Executive's exclusive representative with respect to all
proceedings with the IRS relating to the proposed Excise Tax
assessment, including but not limited to negotiating a settlement
or compromise of the proposed Excise Tax assessment, filing a claim
for refund with respect thereto, and seeking judicial review of any
disallowance of a claim for refund. Executive hereby agrees to
execute an appropriate power of attorney authorizing the Tax
Representative to represent Executive with respect to the Excise
Taxes. Executive further agrees to take any other appropriate
actions reasonably requested by the Tax Representative in
connection therewith; provided, however, that the Corporation shall
reimburse Executive for any expenses incurred by Executive as a
result of compliance with such requests.
(3) If the Tax Representative files a claim for refund
of Excise Taxes with respect to which the Corporation has made a
Gross-Up Payment and such refund claim is allowed by the IRS or by
the final judgment of a court of competent jurisdiction, Executive
shall endorse the refund check payable to the Corporation and shall
send the refund check to the Corporation not later than five (5)
days after receipt from the IRS.
(4) If the Corporation designates a Tax Representative,
the Corporation shall pay all of his or her professional fees and
expenses and hold Executive harmless from any claims in connection
therewith. The Tax Representative shall keep Executive timely
informed of all significant developments in the Excise Tax matter
and shall send to Executive copies of all correspondence relating
thereto.
(5) Notwithstanding anything herein to the contrary, if
the Corporation is in material breach of any of its obligations
pursuant to this Agreement, the Corporation's rights pursuant to
this Subsection 7(e) shall be extinguished and Executive shall have
the right to revoke any power of attorney executed pursuant to this
Subsection 7(e).
8. NO OBLIGATION TO MITIGATE DAMAGES. The Executive shall not
be obligated to mitigate any damages by seeking other employment or
otherwise, and no amount payable hereunder and no benefit or
service credit for benefits shall be reduced in the event that the
Executive shall accept alternative employment.
9. BENEFITS PAYABLE ONLY FROM CORPORATE ASSETS.
(a) NO TRUST. Nothing contained in this Agreement, and no
action taken pursuant to its provisions by either party
hereto shall create, or be construed to create, a trust of any
kind, or a fiduciary relationship between the Corporation and the
Executive or his or her Beneficiary.
(b) EXECUTIVE'S STATUS AS UNSECURED GENERAL CREDITOR. The
payment of any benefits hereunder to the Executive or his or her
Beneficiary shall be made from assets which shall continue, for all
purposes, to be a part of the general assets of the Corporation; no
person shall have or acquire any interest in such assets by virtue
of the provisions of this Agreement. To the extent that the
Executive or his or her Beneficiary acquires a right to receive
payments from the Corporation under the provisions hereof, such
right shall be no greater than the right of any unsecured general
creditor of the Corporation.
(c) RECOVERY OF COST OF PROVIDING BENEFITS. In the event
that, in its discretion, the Corporation purchases an insurance
policy insuring the life of the Executive to enable the Corporation
to recover, in whole or in part, the cost of providing any benefits
hereunder, neither the Executive nor his or her Beneficiary under
this Agreement shall have or acquire any rights whatsoever
therein. The Corporation shall be the sole owner and beneficiary
of any such policy and, as such, shall possess and may exercise all
incidents of ownership therein.
10. DETERMINATION OF BENEFITS AND CLAIMS PROCEDURE. The
Corporation shall make all determinations as to rights to benefits
under this Agreement. Subject to and in compliance with the
specific procedures contained in the applicable regulations
promulgated under the Employee Retirement Income Security Act of
1974, as amended: (i) any decision by the Corporation denying a
claim for benefits under this Agreement by the Executive or his or
her Beneficiary shall be stated in writing by the Corporation and
delivered or mailed to the claimant; (ii)each such notice shall set
forth the specific reasons for the denial, written to the best of
the Corporation's ability in a manner that may be understood
without legal or actuarial counsel; and (iii)the Corporation shall
afford a reasonable opportunity to the claimant whose claim for
benefits has been denied for a review of the decision denying such
claim.
11. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation
in any benefit, bonus, incentive or other plan or program provided
by the Corporation or any Affiliated Companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any other
agreements with the Corporation or any Affiliated Companies.
Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the
Corporation or any Affiliated Companies shall be payable in
accordance with the terms of such plan or program.
12. FULL SETTLEMENT. After a Change of Control, the
Corporation's obligation to make the payments provided for herein
and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the
Corporation may have against the Executive or others. Unless it is
finally determined by a court of competent jurisdiction after all
available appeals that the Corporation has validly terminated the
Executive's employment for Cause, the Corporation agrees to pay, to
the full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Corporation or others of
the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance
thereof, plus, in each case, interest compounded quarterly, on the
total unpaid amount determined be payable hereunder, such interest
to be calculated on the basis of the prime commercial lending rate
announced by Mercantile Bank, N.A. in effect from time to time, for
the period commencing on the date of such contest and ending on
the date on which the Corporation shall pay such amount.
13. COVENANTS.
(a) NON-COMPETITION.
(1) Executive recognizes that during the course of
Executive's employment with the Corporation, Executive has been and
will be instructed about and become acquainted with confidential
information of the Corporation, including, without limitation,
customer lists, methods of sales, the existence and contents and
terms of this Agreement, methods of sales procurement, sales
procurement techniques, sales procedures and equipment/supply
information, equipment and supply acquisition procedures and
processes and sources, customer evaluation procedures, customer
maintenance and supply maintenance procedures and corresponding
information relating to persons, firms and corporations which are
or may become customers of the Corporation and, further, companies
from which the Corporation obtains various products and supplies
for sale, resale and distribution to customers of the Corporation.
This confidential information further includes, but is not limited
to, customer identity, supplier identity and terms, purchase terms,
sales techniques, purchase conditions and rates, customer needs,
billing procedures and processes, contacts and customer
information. Further, Executive agrees and acknowledges that the
development and assemblage and maintenance of the customer base of
the Corporation has taken extraordinary time, money, resources,
training, and effort by the Corporation and its employees.
(2) Executive agrees that he or she will not during the
Term of Employment and for a period of two (2) years following
cessation of his or her employment at the Corporation ("Restricted
Period"), for any cause or reason, directly or indirectly:
(A) engage in any business in competition with the
Corporation and its Affiliates or supply and sell to present
customers, former customers and prospects of the Corporation and
its Affiliates; or
(B) own, manage, operate, control, advise, be
employed by, consult, or materially participate in, or be
materially involved in any manner with the ownership, management,
operation or control of, individually or through any other entity
or device, any business that competes with the business then
conducted by the Corporation or any Affiliate; provided, however,
that mere ownership as an investor of not more than five percent
(5%) of the securities of a corporation or other business
enterprise shall not in and of itself be deemed to violate this
Section 13(b)(2)(B).
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(1) Executive will not, except as authorized by the
Corporation in writing, during or at any time after the termination
of Executive's employment with the Corporation, directly or
indirectly, use for himself or herself or others, or disclose,
communicate, divulge, furnish to, or convey to any other person,
firm, or corporation, any secret or confidential information,
knowledge or data of the Corporation or that of third parties
obtained by Executive during the period of his or her employment
with the Corporation. Such information, knowledge or data
includes, without limitation, the following:
(A) Secret or confidential matters of a technical
nature such as, but not limited to, methods, know-how,
formulations, compositions, processes, discoveries, machines,
inventions, computer programs, and similar items or research
projects involving such items,
(B) Secret or confidential matters of a business
nature such as, but not limited to, marketing policies or
strategies, information about costs, price lists, purchasing and
purchasing policies, profits, market, sales or lists of customers,
customer history information, and
(C) Secret or confidential matters pertaining to
future developments such as, but not limited to, research and
development or future marketing or merchandising.
(2) Executive, upon termination of his or her
employment with the Corporation, or at any other time upon the
Corporation's request, shall deliver promptly to the Corporation
all manuals, letters, notes, notebooks, reports, formulations,
computer programs and similar items, memoranda, lists of customers,
customer history information and all other materials and copies
thereof relating in any way to the Corporation's business and in
any way obtained by Executive during the term of employment with
the Corporation which are in his or her possession or under his or
her control; and Executive will not make or retain any copies of
any of the foregoing and will so represent to the Corporation upon
termination of his or her employment.
(c) INDUCEMENT.
(1) Executive agrees that during the Term of
Employment and during the Restricted Period, Executive shall not
use any confidential information for the purposes of inducing or
attempting to induce any present, former, or prospective customer
of the Corporation or its Affiliates to become a customer of
Executive or any person, firm, or corporation, or business
association with which Executive is affiliated in any capacity with
respect to the markets supplied by the Corporation or its
Affiliates.
(2) Executive agrees that during the Term of
Employment and during the Restricted Period, Executive shall not
directly or indirectly solicit for employment or employ any of the
Corporation's employees to work for Executive or any business
association with which/whom Executive is affiliated, or to work for
any other company in the markets supplied by the Corporation or its
Affiliates.
(d) INTEREST OF PARTIES. Executive agrees that the
duration of the limitations set forth in this Section 13 are
reasonable under the circumstances, considering Executive's
position with the Corporation and other relevant factors, and that
this will not constitute a serious handicap to Executive in
securing future employment.
(e) DISCLOSURE TO CORPORATION. Executive shall
promptly communicate and disclose to the Corporation all
information, observations and data obtained by Executive in the
course of Executive's employment. All written materials, records
and documents made by Executive or coming into Executive's
possession during the Term of Employment concerning any inventions,
products, processes or equipment, manufactured, used, developed,
investigated or considered by the Corporation or any Affiliated
Companies shall be the property of the Corporation, and upon
termination of the Term of Employment, or upon request of the
Corporation during the Term of Employment, Executive shall
promptly deliver the same to the Corporation.
Executive agrees to render to the Corporation such reports of the
activities of the business undertaken by Executive or conducted
under Executive's direction during the Term of Employment as the
Corporation may reasonably request.
(f) INVENTIONS.
(1) Executive shall promptly communicate and
disclose in writing to the Corporation all those inventions and
developments whether patentable or not, as well as patents and
patent applications (hereinafter collectively called "Inventions"),
made, conceived, developed or purchased by Executive, or under
which Executive acquires the right to grant licenses or to become
licensed, alone or jointly with others, during the Term of
Employment, which have arisen or may arise out of Executive's
employment, or relate to any matters pertaining to, applicable to,
or useful in connection with, the business or affairs of the
Corporation or any Affiliated Companies. All of Executive's right,
title and interest in, to and under all such inventions, licenses
and rights to grant licenses shall be the sole property of the
Corporation. Any such inventions disclosed to anyone by Executive
within one (1) year after the termination of the Term of Employment
for any cause whatsoever shall be deemed to have been made or
conceived by Executive during the Term of Employment.
(2) As to all such inventions, Executive shall,
upon request of the Corporation, during the Term of Employment or
thereafter:
(A) Execute all documents which the
Corporation shall deem necessary or proper
to enable it to establish title to such
inventions, or other rights, and to enable
it to file and prosecute applications for
letters patent of the United States and any
foreign country; and
(B) Do all things (including the giving
of evidence in suits and other proceedings)
which the Corporation shall deem necessary
or proper to obtain, maintain or to assert
patents for any and all such inventions or
to assert its rights in any inventions not
patented.
All expenses incident to any action required by the Corporation or
taken on its behalf pursuant to the provisions of this paragraph
shall be borne by the Corporation including without limitation a
reasonable payment for Executive's time and expenses involved in
case he or she is not then in its employ.
(g) LITIGATION. Executive agrees that during the
Term of Employment or thereafter, Executive shall do all things,
including the giving of evidence in suits and other proceedings,
which the Corporation shall deem necessary or proper to obtain,
maintain or assert rights accruing to the Corporation during the
Term of Employment and in connection with which Executive has
knowledge, information or expertise. All reasonable expenses
incurred by Executive during the Term of Employment or thereafter
in fulfilling the duties set forth in this Section, shall be
reimbursed by the Corporation to the full extent legally
appropriate including, without limitation, a reasonable payment for
Executive's time in the event this Agreement has terminated prior
to the time Executive renders such assistance, advice and counsel.
14. EQUITY. The parties hereto agree that the services to be
rendered by Executive are special, unique and of an extraordinary
character. In the event of the breach by Executive of any of the
provisions of this Agreement, the Corporation, in addition and as
a supplement to such other rights and remedies as may exist in its
favor, may apply to any court of law or equity having jurisdiction
to enforce the specific performance of this Agreement, and/or may
apply for injunctive relief against any act which would violate any
of the provisions of this Agreement.
15. EFFECT ON PRIOR AGREEMENTS. This Agreement shall supersede
and replace any and all prior employment agreements entered into
between Executive and the Corporation or any Affiliated Company,
including but not limited to that certain Employment Agreement
dated February 5, 1995. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter hereof.
16. NO ASSIGNMENT.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Corporation shall not be
assignable by the Executive other than by will or the laws of
descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives and Beneficiary.
(b) This Agreement shall inure to the benefit of and be
binding upon the Corporation and its successors. The Corporation
shall require any successor to all or substantially all of the
business and/or assets of the Corporation, whether direct or
indirect, by purchase, merger, consolidation, acquisition of stock,
or otherwise, by an agreement in form and substance satisfactory to
the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent as the
Corporation would be required to perform if no such succession had
taken place.
17. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provision or clause were omitted.
18. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without
reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended or modified
other than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) In the event that litigation is required to enforce any
provision of this Agreement, subject to the provisions of Section
12 hereof, the prevailing party shall be entitled to reasonable
attorneys fees.
(c) All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party
or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
IF TO THE EXECUTIVE:
Xxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
IF TO THE CORPORATION:
Consumer Programs, Incorporated
0000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx, President
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(d) This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof.
(e) The Corporation may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or
regulation.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in duplicate, all as of the day and year first above
written.
CONSUMER PROGRAMS INCORPORATED
BY: /s/ Xxxxxxx Xxxxx
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President
BY: /s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
