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Exhibit 10.11.2
As of January 9, 1997
Xx. Xxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxx:
Reference is made to that certain letter agreement ("Termination
Agreement") dated November 27, 1996 between you and A. L. Investors, Inc., a
Texas corporation (the "Company") and joined therein for limited purposes by
TCC Industries, Inc. (the parent company of the Company, formerly named TeleCom
Corporation and being referred to herein as "TCC"), which makes certain
provisions in the event of the termination of your employment with the Company
and also terminates that certain letter agreement dated March 24, 1993, as
amended by the letter agreement dated as of April 14, 1993, both of which were
between you and TCC. To provide you with further incentive to continue serving
as chief executive officer of the Company, the Board of Directors of the
Company and of TCC have authorized certain modifications to the Termination
Agreement, which are as follows:
A. Paragraph numbered 1 of the Termination Agreement is amended
so as to read as follows:
"1. In the event that you terminate your employment with
the Company as a result of one or more of the following events
(collectively, the "Terminating Events" and each a "Terminating
Event"): (i) a change in control of the Company as defined in
paragraph 6, below; (ii) a Change of Circumstances of either you or
the Company as defined in paragraph 7, below; (iii) the Company ceases
to do business; (iv) in the event (an "Insolvency Event") of the
Company's bankruptcy, insolvency or any assignment for the benefit of
creditors, or any other act by the Company to take advantage of any
law providing for relief to debtors, provided that you terminate your
employment with the Company within one year of the occurrence of one
or more of the Terminating Events, you will be entitled to: (x) a
lump-sum payment (the "Special Severance Payment") equal to the sum of
(A) the highest one month's base salary in effect during the three
year period immediately preceding such termination, multiplied by the
number of full years you have then been employed by the Company or any
affiliate of the Company (including without limitation, TCC), (B) any
bonuses accrued but unpaid as of the effective date of termination,
including without limitation an amount equal to (i) the amount that
would have been earned under the TCC Industries, Inc. Annual Incentive
Plan, as amended from time to time (the "AIP"), for the fiscal year
in which such termination occurs had the Incentive Award (as defined
in the AIP) for that year not been subject to being forfeited due
to termination, i.e., you will be considered to have been employed for
the entire such year, (ii) multiplied by a fraction the numerator of
which is the number of days elapsed in such calendar year as of the
date of such
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termination, and the denominator of which is 365 (such amount to be
paid in the first quarter of the calendar year following the year in
which such termination occurs), and (C) any other compensation owed to
you by the Company as of the effective date of termination, and (y)
fringe benefits for a period of one year following such termination,
such as health insurance, auto allowance, any premiums becoming due
during such one year period with respect to any life insurance policy
on your life for which the Company, TCC or an affiliate of TCC has
previously made the premium payments, and payment for any unpaid
vacation not taken and accrued as of such termination. Upon such
termination the Company shall take such action and otherwise cooperate
with you in promptly causing the (1) beneficiary of such life
insurance policy to be changed from the Company to someone designated
by you, and (2) ownership of any such life insurance policy to be
transferred to you, including the right to designate the beneficiary.
In addition, any portion of any stock options granted by TCC which
have not then vested shall become exercisable in full for a period of
six months following the effective date of termination, or such lesser
period as the option would have been exercisable had your employment
with the Company not been terminated. Notwithstanding the foregoing,
if the only event specified in clauses (i) through (iv) above that
occurs is an event specified in clause (iv) (relating to an Insolvency
Event), then upon the voluntary termination by you of our
employment, you shall be entitled to only one-half of the payments and
benefits provided for in clauses (x) and (y) above. To the extent
necessary, this letter shall constitute an amendment to any stock
options granted to you by TCC such that the vesting and exercise
provisions thereof shall be consistent with the first sentence of this
paragraph 1. In the event of the occurrence of any of the Terminating
Events and the voluntary termination of your employment by you within
one (1) year of such Terminating Event you shall be deemed to have
terminated your employment as a result of such Terminating Event;
provided that if the Terminating Event specified in clause (iv) (being
an Insolvency Event) occurs and one of the other Terminating Events
specified in clauses (i), (ii) or (iii) also occurs, you shall be
deemed to have terminated your employment as a result of such clause
(i), (ii) or (iii), and not clause (iv)."
B. Paragraph numbered 2 of the Termination Agreement is amended
so as to read as follows:
"2. In the event that your employment with the Company is terminated
by or at the instance of the Company at any time and for any reason other than
for Cause, as defined in paragraph numbered 8 below, you will be entitled to
the Special Severance Payment, together with (a) fringe benefits for a period
of one (1) year following any termination as referenced in (y) in paragraph
numbered 1 above, (b) the assignment of life insurance policies and benefits
described in paragraph 1 above, and (c) the acceleration of vesting and
extension of date for exercise of stock options as described in paragraph
numbered 1 above."
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C. Paragraph numbered 3 of the Termination Agreement is amended so as
to read as follows:
"3. The Company shall pay the Special Severance Payment to you
within fifteen calendar days of the effective date of your termination pursuant
to paragraph numbered 1 or paragraph numbered 2, whichever is applicable."
D. Paragraph numbered 4 of the Termination Agreement is amended so as
to read as follows:
"4. As a condition to the Company's obligation to pay the Special
Severance Payment in the event of the voluntary termination by you of your
employment with the Company pursuant to paragraph numbered 1, you shall provide
written notice to the Company specifying the (i) effective date of the
termination, and (ii) which of the Terminating Events constitutes a reason for
your voluntary termination."
E. Paragraph numbered 5 of the Termination Agreement is amended so as
to read as follows:
"5. The obligations of the Company under this letter agreement are
undertaken in consideration of your many years of service to the Company and in
order to induce you to continue those services to the Company, and shall not
expire until the Company shall have paid and performed each of its obligations
to you following any termination of your employment, regardless of when such
termination occurs. The parties acknowledge that this letter is intended to be
construed broadly and liberally in order to confer upon you the specified
benefits in the event of the termination of your employment."
F. Paragraph numbered 6 of the Termination Agreement is amended
so as to read as follows:
"6. Change in Control means: (i) the sale or other disposition of
the Company or TCC (whether directly or indirectly, and whether by way
of merger, consolidation, sale of assets or sale of stock of the
Company or TCC), or the sale by the Company or TCC of all or
substantially all of the assets of the Company or TCC to any person (as
such term is defined in the Securities Exchange Act of 1934), the
consolidation of the Company or TCC with any person, or the merger of
the Company or TCC with any person, as a result of which consolidation
or merger the Company, TCC or an affiliate of TCC as of the date of
this letter agreement, is not the surviving entity; (ii) the sale or
transfer by (A) the Company and/or TCC, and/or any subsidiary of or
affiliate of TCC then in control, directly or indirectly, of the
Company (whether one or more, a "Control Affiliate"), or (B) TCC and/or
one or more of its shareholders, in one or more related or unrelated
transactions, to one or more persons under circumstances whereby any
person and its "affiliates" (as hereinafter defined) shall
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own, after such sale or transfer, in excess of one-half of the
outstanding shares of the Company or TCC, as the case may be; (iii)
the issuance by the Company, TCC and/or any Control Affiliate, in a
single transaction or a series of related transactions including a
merger or consolidation in which the Company, TCC and/or any Control
Affiliate, as the case may be, is the surviving entity, of shares
which constitute more than one-half of the shares of the Company, TCC
or such Control Affiliate, as the case may be, outstanding immediately
prior to the first such transaction, (iv) the liquidation of the
Company, TCC or any Control Affiliate, as the case may be, or (v) the
election of one or more individuals to the Board of Directors of TCC
which results in a majority of the Directors of TCC being persons who
are not Directors of TCC on January 9, 1997. As used in this letter,
an "affiliate" shall mean any person that, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or
is under common control with, any other person or who, by agreement
(whether written or oral), is acting in concert with any such person.
G. The Termination Agreement is amended by adding thereto a new
paragraph numbered 12, which reads as follows:
"12. The obligations of the Company to you under this letter
agreement shall be independent of, and shall not be subject to, any condition,
obligation or offset except as expressly set forth in this letter agreement. In
particular, any obligation of the Company to pay any amount of money to you
shall not be subject to offset against any liability or amount owed by you to
the Company, except to the extent that either (i) you consent to the offset in
writing at the time of the offset, (ii) the amount so offset has been reduced
to final, nonappealable, judgment in favor of the Company against you in a
court having jurisdiction or (iii) such liability or amount is owed by you to
the Company as a result of a breach by you of any of your fiduciary duties to
the Company. If any legal action or other proceeding, including an arbitration
proceeding instituted pursuant to the next succeeding sentence, is brought for
the enforcement of this letter agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions
of this letter agreement, the successful or prevailing party will be entitled
to recover reasonable attorney's fees and other costs incurred in that action
or proceeding, in addition to any other relief to which it or he may be
entitled. Except in connection with seeking injunctive relief to which any
party hereto may reasonably believe it or he is entitled hereunder, or as
otherwise expressly provided for by this letter agreement, any dispute,
controversy or claim arising out of or relating to this letter agreement, or
the breach, termination or invalidity thereof, shall be settled by arbitration
in accordance with the commercial arbitration rules of the American Arbitration
Association as then in effect; provided, that the place of the arbitration
shall be Denver, Colorado. Any award or determination entered in any
arbitration initiated pursuant to this letter agreement shall be binding and
conclusive on the parties, and shall be enforceable in any court having
jurisdiction with respect to the matter. If it is ultimately determined in any
such proceeding that the Company wrongfully withheld payment of any portion of
the Special Severance Payment or other obligation of the Company to you under
this letter agreement prior to such determination, then you shall be entitled
to recover from the Company an amount equal to 18% per annum on such amount,
from the date such amount should have been paid until it is paid, and such
recovery shall be in addition to such other
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sums to which you are entitled hereunder. Unless otherwise provided above, each
Party shall pay its or his own expenses incurred in connection with a
proceeding pursuant to this paragraph numbered 12."
If you are in agreement with the foregoing, please so indicate by
signing the enclosed copy of this letter and returning the same to the
undersigned.
A. L. Investors, Inc.
By: /s/ XXXXX X. XXXXXX
--------------------------
Its: Assistant Secretary
--------------------------
Agreed to as of the date of this letter.
/s/ XXXXX X. XXXXX
-------------------------------------------
Xxxxx X. Xxxxx
Agreed to as of the date of this letter.
TCC Industries, Inc.
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Its: Secretary
---------------------------------------
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November 27, 1996
Xx. Xxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxx:
You have recently assumed responsibilities as chief executive officer
of A. L. Investors, Inc., a Texas corporation doing business as "Xxxxx Xxxxx
Manufacturing Company" (the "Company"). As a result, you and TCC Industries,
Inc. (the parent company of the Company, formerly named TeleCom Corporation and
being referred to herein as "TCC") have agreed that the letter agreement dated
March 24, 1993, as amended by the letter agreement dated as of April 14, 1993,
both of which are between you and TCC (said two letter agreements being
referred to collectively herein as the "TCC Severance Letter Agreements"),
should be terminated and a new agreement entered into between you and the
Company. The Board of Directors of the Company has approved an agreement
between the Company and you in order to provide to you a severance payment as
additional incentive to continue your employment with the Company. Accordingly,
the Board has authorized such an agreement, and the terms thereof follow:
1. In the event that you terminate your employment with the Company as
a result of one or more of the following: (i) a change in control of the
Company as defined in paragraph 6, below; (ii) a Change of Circumstances
of either you or the Company as defined in paragraph 7, below; (iii) the
Company ceases to do business; (iv) in the event of the Company's
bankruptcy, insolvency or any assignment for the benefit of creditors,
or any other act by the Company to take advantage of any law providing
for relief to debtors, provided that you terminate your employment with
the Company within twelve months of the occurrence of one or more of the
foregoing events, you will be entitled to: (x) a lump-sum payment equal
to the sum of (A) one month's base salary as in effect on the effective
date of termination for each full year you have then been employed by
the Company or any affiliate of the Company (including without
limitation, TCC), (B) any bonuses accrued but unpaid during the twelve
month period immediately preceding the effective date of termination,
including an amount equal to (i) the amount, if any, that would have
been earned under the Annual Incentive Plan, as amended from time to
time (the "AIP"), of TCC for the fiscal year in which such termination
occurs had the Incentive Award (as defined in the AIP) for that year not
been subject to being forfeited due to termination, i.e., you will be
considered to have been employed for the entire such year, (ii)
multiplied by a fraction the numerator of which is the number of days
elapsed in such calendar year as of the date of such termination, and
the denominator of which is 365 (such amount to be paid in the first
quarter of the calendar year following the year in which such
termination occurs), and (C) any other compensation owed to you by the
Company as of the effect date of termination (the "Special Severance
Payment"), and (y) one year's fringe benefits, such as health insurance
and auto allowance.
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In addition, any portion of any stock options granted by TCC which have
not then vested shall become exercisable in full for a period of six
months following the effective date of termination, or such lesser
period as the option would have been exercisable if your employment
with the Company had not been terminated. Notwithstanding the
foregoing, if the only event specified in clauses (i) through (iv)
above that occurs is an event specified in clause (i), then upon the
voluntary termination by your of your employment, you shall be entitled
to only one-half of the payments and benefits provided for in clauses
(x) and (y) above. To the extent necessary, this letter shall
constitute an amendment to any stock options granted to you by TCC such
that the vesting and exercise provisions thereof shall be consistent
with the first sentence of this paragraph 1.
2. In the event that the Company terminates your Employment for
any reason other than for Cause as defined in paragraph 8, below,
after the date of this letter, you will be entitled to the Special
Severance Payment.
3. The Company shall pay the Special Severance Payment to you
within fifteen calendar days of the effective date of your termination.
4. As a condition to the Company's obligation to pay the Special
Severance Payment, you shall provide written notice to the Company
specifying (i) the effective date of the termination, and (ii) the
reason for the termination.
5. The provisions of this letter shall be in effect until
March 24, 1998, at which time this letter agreement will terminate.
6. Change in Control means: (i) the sale by the Company of all or
substantially all of its assets to any person (as such term is defined
in Sections 12(d) and 14(d) of the Securities Exchange Act of 1934),
the consolidation of the company with any person, or the merger of the
Company with any person as a result of which the Company is not
surviving entity; (ii) the sale or transfer by the Company and/or one
or more of its shareholders, in one or more related or unrelated
transactions, to one or more persons under circumstances whereby any
person and its affiliates shall own, after such sale or transfer, in
excess of one-half of the outstanding shares; or (iii) the issuance by
the Company, in a single transaction or a series of related
transactions including a merger or consolidation in which the Company
is the surviving entity, of shares which constitute more than one-half
of the shares outstanding immediately prior to the first such
transaction. As used in this letter, an "affiliate" shall mean any
person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common
control with, any other person.
7. A Change of Circumstances shall be deemed to have occurred if,
in your sole judgment, there has been: (i) a material reduction or
change in your duties or reporting responsibilities or a removal from
or failure to be elected to a previously held position, including
without limitation a removal from an officer position in the department
in which
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you are now employed or a relocation of your employment outside of the
Denver metropolitan area; (ii) a breach by the Company of any provision
of this letter; (iii) a material reduction in your salary or the fringe
benefits of employment made available to you by the Company, which
reduction is not also applicable to all Company employees; (iv) a
material diminution in your status, working conditions or economic
benefits; or (v) any action which substantially impairs your prestige
in relation to any other employee of the Company.
8. Cause means conduct which, in the Company's sole opinion,
constitutes; (i) fraud or dishonesty; (ii) inability to perform due to
alcoholism; (iii) inability to perform due to improper and illegal use
of drugs; (iv) excessive absenteeism other than for major illness or
similar serious situations; or (v) inattention to your duties and
responsibilities to the Company, after prior written warning by the
Company.
9. This letter shall be construed and enforced in accordance with, and
the validity and performance hereof shall be governed by the laws of
the State of Texas.
10. This letter constitutes the entire agreement between you and the
Company regarding the subject matter hereof and supersedes all prior
and contemporaneous agreements and understandings in connection
herewith.
11. To induce the undersigned to enter into this letter agreement, you
and TCC agree that the TCC Severance Letter Agreement is hereby
terminated, and any amendment to any stock options granted to you by
TCC effected pursuant to the TCC Severance Letter Agreement in
rescinded, canceled and terminated.
If you are in agreement with the foregoing, please so indicate by
signing the enclosed copy of this letter and returning the same to the
undersigned.
A.L. Investors, Inc.
By: /s/ XXXXXXXX X. XXXXXXXX
------------------------------
Its: Chairman of the Board
Agreed to as of the date of
this letter.
/s/ XXXXX X. XXXXX
----------------------------------
Xxxxx X. Xxxxx
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Agreed to as of the date of this letter
for purposes of Paragraph numbered
11 only.
TCC Industries, Inc.
By: /s/ XXXXXXXX X. XXXXXXXX
------------------------
Its: President
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[TCC INDUSTRIES, INC. LOGO]
November 27, 1996
Xx. Xxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxx:
Reference is made to that certain letter agreement ("ALI Letter
Agreement") of even date herewith between you and A.L. Investors, Inc. ("ALI"),
a subsidiary of the undersigned corporation, providing among other things for
certain payments and benefits in the event of your termination of employment
with ALI under certain circumstances. To induce you to (i) enter into the ALI
Letter Agreement, and (ii) agree to the termination of the TCC Severance Letter
Agreements (as that term is defined in the ALI Letter Agreement), the
undersigned corporation agrees that in the event of the breach or default by
ALI upon or with respect to any of its covenants and obligations (collectively,
the "ALI Obligations") under the ALI Agreement, the undersigned corporation
will pay and discharge or cause to be paid and discharged any and all such ALI
Obligations in a timely manner.
Please indicate your acceptance of this letter agreement by signing the
enclosed copy hereof and returning the same to the undersigned corporation.
TCC INDUSTRIES, INC.
By: /s/ XXXXXXXX X. XXXXXXXX
------------------------
President
Agreed to as of the date of this letter.
/s/ XXXXX X. XXXXX
--------------
Xxxxx X. Xxxxx
