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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 18th day of
April, 1999, by and between XXXXXX INTERNATIONAL, INC., a Delaware corporation
(the "Company"), and XXXXXX X. XXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive have previously entered into an
agreement ("Prior Agreement") providing for Executive's employment by the
Company and specifying the terms and conditions of such employment; and
WHEREAS, the Company entered into an Agreement and Plan of Merger
and Recapitalization (the "Recapitalization Agreement") dated the date hereof
with Red Dog Acquisition Corp. ("Newco"), a wholly owned subsidiary of Xxxxxx
Brothers Merchant Banking Partners II L.P. ("LB MBP II"); and
WHEREAS, pursuant to the Recapitalization Agreement, the Company
will be recapitalized through a merger with and into Newco, following which
substantially all of the outstanding capital stock of the Company will be held
by LB MBP II; and
WHEREAS, the Company desires to recognize Executive's superior
performance and continuing value to the Company and its shareholders by
modifying the Prior Agreement and restating such agreement in a single document
as hereinafter provided; and
WHEREAS, Executive desires to continue his employment with the
Company on the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereby agree as follows:
1. Purpose and Effectiveness.
(a) The purpose of this Agreement is to amend the Prior Agreement,
to recognize Executive's significant contributions to the overall financial
performance and success of the Company, and to provide a single, integrated
document which shall provide the basis for Executive's continued employment by
the Company;
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(b) This Agreement shall not be effective until the Effective Time
(as defined in the Recapitalization Agreement), and this Agreement shall
terminate immediately if the Recapitalization Agreement is terminated in
accordance with its terms prior to the Effective Time.
2. Employment and Term.
(a) Subject to the terms and conditions of this Agreement, the
Company hereby employs Executive, and Executive hereby accepts employment, as
Group President of the Sporting Equipment Group and shall have such
responsibilities, duties and authority that are consistent with such position as
may from time to time be assigned to Executive by the Board. Executive hereby
agrees that during the Term of this Agreement he will devote substantially all
his working time, attention and energies to the diligent performance of his
duties as Group President of the Sporting Equipment Group. With the consent of
the Board of Directors, the Executive may serve as a director on the boards of
directors or trustees of additional companies and organizations.
(b) Unless earlier terminated as provided herein, Executive's
employment under this Agreement shall be for a rolling, two year term (the
"Term") commencing on the Effective Time, and shall be deemed to automatically,
without further action by either the Company or Executive, extend each day for
an additional day, such that the remaining term of the Agreement shall continue
to be two years; provided, however, that (i) either party may, by written notice
to the other, cause this Agreement to cease to extend automatically and, upon
such notice, the "Term" of this Agreement shall be the two years following the
expiration of such Term, and (ii) the Term of this Agreement shall not extend
beyond the date Executive attains age 65, unless the parties otherwise agree in
writing. If no such notice to cease to extend has been given and this Agreement
is terminated pursuant to Section 5.1 or 5.2 hereof, for the purposes of
calculating and assessing the damages to Executive as a result of such
termination, the remaining Term of this Agreement shall be deemed to be two
years from the date of such termination (or, if earlier, the date Executive
attains age 65).
3. Compensation and Benefits. As compensation for his services during the
Term of this Agreement, Executive shall
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be paid and receive the amounts and benefits set forth in subsections (a)
through (f) below:
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(a) An annual base salary ("Base Salary") of Three Hundred Forty
Thousand and No/100 Dollars ($340,000.00), prorated for any partial year of
employment. Executive's Base Salary shall be subject to annual review for
increases at such time as the Company conducts salary reviews for its executive
officers generally. Executive's salary shall be payable in substantially equal
installments on a bi-monthly basis, or in accordance with the Company's regular
payroll practices in effect from time to time for executive officers of the
Company.
(b) Executive shall be eligible to participate in the Executive
Management Target Incentive Plan and such other annual incentive plans as may be
established by the Company from time to time for its executive officers. The
Board or a committee of the Board will establish performance goals each year
under the incentive plans, and Executive's annual Target Bonus shall be 50% of
Base Salary; the maximum award for exceeding the performance goals (which will
be determined in accordance with the current plan design) shall be 100% of Base
Salary. The annual incentive bonus payable under this subsection (b) shall be
payable as a lump sum at the same time bonuses are paid to other senior
executives after certification by the Compensation Committee of the Board, that
the applicable performance objectives have been met, unless Executive elects to
defer all or a portion of such amount pursuant to any deferral plan established
by the Company for such purpose.
(c) Promptly upon commencement of the Term, Executive shall make a
minimum investment in the equity ("Purchased Equity") of the Company of 100% of
the aggregate amount of the net proceeds remaining after all applicable taxes
have been paid, resulting from the cancellation of his outstanding stock options
in accordance with Section 2.2 of the Recapitalization Agreement. The Company
and Executive shall endeavor to structure such investment in the most tax and
accounting efficient manner reasonably possible under the relevant
circumstances. In respect of such investment, the Company will grant Executive
60,000 options to purchase shares of the Company's Common Stock that will vest
over time ("Time Options") and the Company will grant Executive
performance-based options for 60,000 shares of the Company's Common Stock
("Performance Options") (the Time Options and the Performance Options are
collectively referred to herein as "Options"). The terms and conditions of the
Time Options and the Performance Options shall be as set forth on the Summary of
Terms, attached hereto as Exhibit A (the "Term Sheet'), and the Company will
enter into separate Option Agreements with Executive covering the grant of such
Options. Executive will be eligible to participate in such
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other stock option programs as may be established from time to time by the
Company for its executive officers. Executive will participate in any long-term
incentive plans established by the Company for executive officers at his level.
The other terms and conditions applicable to the Purchased Equity
and the Options shall be as provided in the Term Sheet and the parties agree to
enter into an Employee Shareholders Agreement which will include the items
covered in the Term Sheet and contain such other customary terms and conditions
as are appropriate for such an agreement and are mutually agreeable to Executive
and Company (and to LB MBP II, where applicable). The Purchased Equity and the
Options will be subject to put and call rights and restrictions as set forth in
Schedule A.
(d) Executive shall continue to be (i) covered by a Supplemental
Executive Retirement Plan ("Individual SERP"), providing for the benefits set
forth in the amended and restated SERP Agreement attached hereto as Exhibit B,
and (ii) a participant in the Xxxxxx, Inc. and Subsidiaries Supplemental
Retirement Benefit Plan ("SERP").
(e) Executive shall be entitled to participate in, or receive
benefits under, any "employee benefit plan" (as defined in Section 3(3) of
ERISA) or employee benefit arrangement made generally available by the Company
to its executive officers, including plans providing retirement, 401(k)
benefits, deferred compensation, health care (including executive medical), life
insurance, disability and similar benefits.
(f) The Company will reimburse Executive for membership dues and
assessments at recreational and social clubs if submitted to and approved by the
Chief Executive Officer of the Company. Executive will be provided an automobile
in accordance with the Company's automobile policy for Executives, and the
Company will pay all insurance, maintenance, fuel, oil and related operational
expenses for such automobile. Executive will receive four weeks vacation during
the Term. Executive will be provided an annual physical examination and a
financial/tax consultant for personal financial and tax planning. Executive will
be promptly reimbursed by the Company for all reasonable business expenses he
incurs in carrying out his duties and responsibilities under this Agreement.
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4. Confidentiality and Noncompetition.
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(a) Executive acknowledges that, prior to and during the Term of
this Agreement, the Company has furnished and will furnish to Executive
Confidential Information which could be used by Executive on behalf of a
competitor of the Company to the Company's substantial detriment. Moreover, the
parties recognize that Executive during the course of his employment with the
Company may develop important relationships with customers and others having
valuable business relationships with the Company. In view of the foregoing,
Executive acknowledges and agrees that the restrictive covenants contained in
this Section are reasonably necessary to protect the Company's legitimate
business interests and good will.
(b) Executive agrees that he shall protect the Company's
Confidential Information and shall not disclose to any Person, or otherwise use,
except in connection with his duties performed in accordance with this
Agreement, any Confidential Information at any time, including following the
termination of his employment with the Company for any reason; provided,
however, that Executive may make disclosures required by a valid order or
subpoena issued by a court or administrative agency of competent jurisdiction,
in which event Executive will promptly notify the Company of such order or
subpoena to provide the Company an opportunity to protect its interests.
Executive's obligations under this Section 4(b) shall survive any expiration or
termination of this Agreement for any reason, provided that Executive may after
such expiration or termination disclose Confidential Information with the prior
written consent of the Board.
(c) Upon the termination or expiration of his employment hereunder,
Executive agrees to deliver promptly to the Company all Company files, customer
lists, management reports, memoranda, research, Company forms, financial data
and reports and other documents supplied to or created by him in connection with
his employment hereunder (including all copies of the foregoing) in his
possession or control, and all of the Company's equipment and other materials in
his possession or control. Executive's obligations under this Section 4(c) shall
survive any expiration or termination of this Agreement.
(d) Upon the termination or expiration of his employment under this
Agreement, Executive agrees that for a period of one (1) year from his date of
termination or until the end of the period for which he is entitled to receive
compensation under Section 5.1(a) below, whichever is longer, he shall not (i)
enter into or engage in the design, manufacture, marketing or sale of any
products
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similar to those produced or offered by the Company or its affiliates in the
area of North America, either as an individual, partner or joint venturer, or as
an employee, agent or salesman, or as an officer, director, or shareholder of a
corporation, (ii) divert or attempt to divert any person, concern or entity
which is furnished products or services by the Company from doing business with
the Company or otherwise change its relationship with the Company, or (iii)
solicit, lure or attempt to hire away any of the employees of the Company with
whom the Executive interacted directly or indirectly while employed with the
Company.
(e) Executive acknowledges that if he breaches or threatens to
breach this Section 4, his actions may cause irreparable harm and damage to the
Company which could not be compensated in damages. Accordingly, if Executive
breaches or threatens to breach this Section 4, the Company shall be entitled to
seek injunctive relief, in addition to any other rights or remedies of the
Company. The existence of any claim or cause of action by Executive against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of Executive's agreement under this
Section 4(e).
5. Termination.
5.1. By Executive. Executive shall have the right to terminate his
employment hereunder at any time by Notice of Termination (as described in
Section 7). If Executive terminates his employment because (i) the Company has
materially breached this Agreement, and such breach has not been cured within
thirty (30) days after written notice of such breach is given by Executive to
the Company; or (ii) Executive has determined that his termination is for Good
Reason (as defined in Section 6.7), Executive shall be entitled to receive the
compensation and benefits set forth in subsections (a) through (g) below. If
Executive terminates his employment other than pursuant to clauses (i) or (ii)
of this Section 5.1, the Company's obligations under this Agreement shall cease
as of the date of such termination. Unless specified otherwise, the time periods
in (a) through (g) below shall be twenty-four (24) months commencing on the date
of Executive's termination ("Severance Period"). The Company agrees that if
Executive terminates employment and is entitled to compensation and benefits
under this Section 5.1, he shall not be required to mitigate damages by seeking
other employment, nor shall any amount he earns reduce the amount payable by the
Company hereunder.
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(a) Base Salary - Executive will continue to receive his Base Salary
as then in effect (subject to withholding of all applicable taxes) for the
Severance Period in the same manner as it was being paid as of the date of
termination; provided, however, that the salary payments provided for hereunder
shall be paid in a single lump sum payment, to be paid not later than 30 days
after his termination of employment; provided, further, that the amount of such
lump sum payment shall be determined by taking the salary payments to be made
and discounting them to their Present Value (as defined in Section 6.9) on the
date Executive's employment under this Agreement is terminated.
(b) Bonuses and Incentives - Executive shall receive bonus payments
from the Company for each month of the Severance Period in an amount for each
such month equal to one-twelfth of the average of the bonuses earned by him for
the two fiscal years in which bonuses were paid immediately preceding the year
in which such termination occurs. Any bonus amounts that Executive had
previously earned from the Company but which may not yet have been paid as of
the date of termination shall be payable on the date such amounts are payable to
other executives and Executive's termination shall not affect the payment of
such bonus. Executive shall also receive a prorated bonus for any uncompleted
fiscal year at the date of termination (assuming the Target Award level has been
achieved), based upon the number of days that he was employed during such fiscal
year. The bonus amounts determined herein shall be paid in a single lump sum
payment, to be paid not later than 30 days after termination of employment;
provided, that the amount of such lump sum payment representing the monthly
bonus payments shall be determined by taking the monthly bonus payments to be
made and discounting them to their Present Value on the date Executive's
employment under this Agreement is terminated.
(c) Health and Life Insurance Coverage - The health (including
executive medical) and group term life insurance benefits coverage provided to
Executive at his date of termination shall be continued for the Severance Period
at the same level and in the same manner as then provided to actively employed
executive participants as if his employment under this Agreement had not
terminated. Any additional coverages Executive had at termination, including
dependent coverage, will also be continued for such period on the same terms, to
the extent permitted by the applicable policies or contracts. Any costs
Executive was paying for such coverages at the time of termination shall be paid
by Executive by separate check payable to the Company each
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month in advance. If the terms of any benefit plan referred to in this Section,
or the laws applicable to such plan, do not permit continued participation by
Executive, then the Company will arrange for other coverage at its expense
providing substantially similar benefits (including the same deductible and
co-payment levels provided under the Company's policy).
(d) Employee Retirement Plans - To the extent permitted by the
applicable plan, Executive will be entitled to continue to participate,
consistent with past practices, in all employee retirement and deferred
compensation plans maintained by the Company in effect as of his date of
termination, including, to the extent such plans are still maintained by the
Company, the Xxxxxx Retirement Plan, the Xxxxxx 401(k) Plan, the Xxxxxx Excess
401(k) Plan, the Individual SERP and the SERP. Executive's participation in such
retirement plans shall continue for the Severance Period and the compensation
payable to Executive under (a) and (b) above shall be treated (unless otherwise
excluded) as compensation under the plan as if it were paid on a monthly basis.
For purposes of the Xxxxxx 401(k) Plan and the Xxxxxx Excess 401(k) Plan, he
will receive an amount equal to the Company's contributions to the plan,
assuming Executive had participated in such plan at the maximum permissible
contributions level. If continued participation in any plan is not permitted by
the plan or by applicable law, the Company shall pay to Executive or, if
applicable, his beneficiary a supplemental benefit equal to the present value on
the date of termination of employment under this Agreement (calculated as
provided in the plan) of the excess of (i) the benefit Executive would have been
paid under such plan if he had continued to be covered for the Severance Period
(less any amounts Executive would have been required to contribute), over (ii)
the benefit actually payable under such plan. The Company shall pay the Present
Value of such additional benefits (if any) in a lump sum within 30 days of his
termination of employment.
(e) Effect of Lump Sum Payment. The lump sum payment under (a) or
(b) above shall not alter the amounts Executive is entitled to receive under the
benefit plans described in this section. Benefits under such plans shall be
determined as if Executive had remained employed and received such payments over
the Severance Period.
(f) Individual SERP and SERP. On his date of termination, Executive
shall be treated for purposes of determining his benefit under the Individual
SERP and the SERP as if he had earned additional years of benefit service equal
to the length of the Severance Period and had
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attained the age he would be at the end of the Severance Period.
(g) Stock Options. As of his date of termination, all the Time
Options and the Performance Options, and any other outstanding stock options
granted to Executive by the Company, shall become vested and exercisable as
provided in the Term Sheet.
(h) Office Space; Secretarial. Executive will be provided
appropriate office space, his then current administrative assistant (such
assistant shall be paid or provided similar compensation and benefits to that
being provided at the time Executive terminates employment), and reasonable
expenses related thereto for a period of twelve (12) months from Executive's
date of termination.
5.2 By Company. The Company shall have the right to terminate
Executive's employment under this Agreement at any time during the Term by
Notice of Termination (as described in Section 7). If the Company terminates
Executive's employment under this Agreement (i) for Cause, as defined in Section
6.2, (ii) if Executive becomes Disabled, or (iii) upon Executive's death, the
Company's obligations under this Agreement shall cease as of the date of
termination; provided, however, that Executive will be entitled to whatever
benefits are payable pursuant to the terms of any health, life insurance,
disability, welfare, retirement or other plan or program maintained by the
Company. If the Company terminates Executive during the Term of this Agreement
other than pursuant to clauses (i) through (iii) of this Section 5.2, Executive
shall be entitled to receive the compensation and benefits provided in
subsections (a) through (h) of Section 5.1 above for the Severance Period, and
subject to the provisions (including the nonmitigation provision) and
limitations therein.
5.3. Limitation on Benefits Upon Termination.
(a) Notwithstanding anything in this Agreement to the contrary, any
benefits payable or to be provided to Executive by the Company or its
affiliates, whether pursuant to this Agreement or otherwise, which are treated
as Severance Payments shall be modified or reduced in the manner provided in (b)
below to the extent necessary so that the benefits payable or to be provided to
Executive under this Agreement that are treated as Severance Payments, as well
as any payments or benefits provided outside of this Agreement that are so
treated, shall not cause the Company to have paid an Excess Severance Payment.
In computing such amount, the parties shall take into account all provisions
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of Code Section 280G, and the regulations thereunder, including making
appropriate adjustments to such calculation for amounts established to be
Reasonable Compensation. If Executive becomes entitled to compensation and
benefits under Section 5.1 or section 5.2 and such payments are considered to be
Severance Payments contingent upon a Change in Control, Executive shall be
required to mitigate damages (but only with respect to amounts that would be
treated as Severance Payments) by reducing the amount of Severance Payments he
is entitled to receive by any compensation and benefits he earns from subsequent
employment (but shall not be required to seek such employment) during the
24-month period after termination (or such lesser period as he is entitled to
extended benefits).
(b) In the event that the amount of any Severance Payments which
would be payable to or for the benefit of Executive under this Agreement must be
modified or reduced to comply with this Section 5.3, Executive shall direct
which Severance Payments are to be modified or reduced; provided, however, that
no increase in the amount of any payment or change in the timing of the payment
shall be made without the consent of the Company.
(c) This Section 5.3 shall be interpreted so as to avoid the
imposition of excise taxes on Executive under Section 4999 of the Code or the
disallowance of a deduction to the Company pursuant to Section 280G(a) of the
Code with respect to amounts payable under this Agreement or otherwise.
Notwithstanding the foregoing, in no event will any of the provisions of this
Section 5.3 create, without the consent of Executive, an obligation on the part
of Executive to refund any amount to the Company following payment of such
amount.
(d) In addition to the limits otherwise provided in this Section
5.3, to the extent permitted by law, Executive may in his sole discretion elect
to reduce any payments he may be eligible to receive under this Agreement to
prevent the imposition of excise taxes on Executive under Section 4999 of the
Code.
(e) For purposes of this Section 5.3, the following definitions
shall apply:
(i) "Excess Severance Payment" - The term "Excess Severance Payment"
shall have the same meaning as the term "excess parachute payment" defined
in Section 280G(b)(1) of the Code.
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(ii) "Severance Payment" - The term "Severance Payment" shall have
the same meaning as the term "parachute payment" defined in Section
280G(b)(2) of the Code.
(iii) "Reasonable Compensation" - The term "Reasonable Compensation"
shall have the same meaning as provided in Section 280G(b)(4) of the Code.
The parties acknowledge and agree that, in the absence of a change in
existing legal authorities or the issuance of contrary authorities,
amounts received by Executive as damages under or as a result of a breach
of this Agreement shall be considered Reasonable Compensation.
(iv) "Present Value" - The term "Present Value" shall have the same
meaning as provided in Section 480G(d)(4) of the Code.
6. Definitions. For purposes of this Agreement the following terms
shall have the meanings specified below:
6.1 "Board" or "Board of Directors". The Board of Directors of the
Company.
6.2 "Cause". The involuntary termination of Executive by the Company
for the following reasons shall constitute a termination for Cause:
(a) If the termination shall have been the result of an act or acts
by Executive which have been found in an applicable court of law to constitute a
felony (other than traffic-related offenses);
(b) If the termination shall have been the result of an act or acts
by Executive which are in the good faith judgment of the Board to be in
violation of law or of policies of the Company and which result in demonstrably
material injury to the Company;
(c) If the termination shall have been the result of an act or acts
of proven dishonesty by Executive resulting or intended to result directly or
indirectly in significant gain or personal enrichment to the Executive at the
expense of the Company; or
(d) Upon the willful and continued failure by the Executive
substantially to perform his duties with the Company (other than any such
failure resulting from incapacity due to mental or physical illness not
constituting a Disability, as defined herein), after a demand in writing for
substantial performance is delivered
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by the Board, which demand specifically identifies the manner in which the Board
believes that Executive has not substantially performed his duties.
With respect to clauses (b), (c) or (d) above of this Section,
Executive shall not be deemed to have been involuntarily terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board (after reasonable
notice to Executive and an opportunity for him, together with his counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive was guilty of conduct set forth above in clauses (b), (c) or (d) and
specifying the particulars thereof in detail. For purposes of this Agreement, no
act or failure to act by Executive shall be deemed to be "willful" unless done
or omitted to be done by Executive not in good faith and without reasonable
belief that Executive's action or omission was in the best interests of the
Company.
6.3 "Change in Control". Either
(a) the acquisition, directly or indirectly, by any "person" (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended), other than LB MBP II or any of its affiliates, of securities
of the Company representing an aggregate of more than fifty percent (50%) of the
combined voting power of the Company's then outstanding securities (excluding
the acquisition by persons who own such amount of securities on the date hereof,
or acquisitions by persons who acquire such amount through inheritance), or
(b) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board, cease for any reason to
constitute at least a majority thereof, unless the election of each new director
was approved in advance by a vote of at least a majority of the directors then
still in office who were directors at the beginning of the period; or
(c) consummation of (i) a merger, consolidation or other business
combination of the Company with any other "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) or
affiliate thereof, other than a merger, consolidation or business combination
which would result in the outstanding common stock of the Company immediately
prior thereto continuing to represent (either by remaining outstanding or
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by being converted into common stock of the surviving entity or a parent or
affiliate thereof) more than fifty percent (50%) of the outstanding common stock
of the Company, or such surviving entity or parent or affiliate thereof,
outstanding immediately after such merger, consolidation or business
combination, or (ii) a plan of complete liquidation of Company or an agreement
for the sale or disposition by Company of all or substantially all of Company's
assets;
(d) a Public Offering as defined in the TermSheet; or
(e) a sale of more than 50% of the assets of the Company;
provided that none of the events described in clauses (b) through (e) shall be
deemed a Change in Control if, immediately following such event, LB MBP II and
its affiliates own 50% or more of the combined voting power of the Company's
then outstanding securities.
6.4 "Code". The Internal Revenue Code of 1986, as it may be amended
from time to time.
6.5 "Confidential Information". All technical, business, and other
information relating to the business of the Company or its subsidiaries or
affiliates, including, without limitation, technical or nontechnical data,
formulae, compilations, programs, devices, methods, techniques, processes,
financial data, financial plans, product plans, and lists of actual or potential
customers or suppliers, which (i) derives economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by, other Persons, and (ii) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy or confidentiality. Such
information and compilations of information shall be contractually subject to
protection under this Agreement whether or not such information constitutes a
trade secret and is separately protectable at law or in equity as a trade
secret. Confidential Information does not include confidential business
information which does not constitute a trade secret under applicable law two
years after any expiration or termination of this Agreement.
6.6 "Disability" or "Disabled". Executive's inability as a result of
physical or mental incapacity to substantially perform his duties for the
Company on a full-time basis for a period of six (6) months.
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6.7 "Good Reason". A "Good Reason" for termination by Executive of
Executive's employment shall mean the occurrence during the Term (without the
Executive's express written consent) of any one of the following acts by the
Company, or failures by the Company to act, and such act or failure to act has
not been corrected within thirty (30) days after written notice of such act or
failure to act is given by Executive to the Company:
(i) the assignment to Executive of any duties inconsistent with
Executive's status as the Group President of the Sporting Equipment Group,
or a substantial adverse alteration in the nature or status of the
Executive's responsibilities from those on the date hereof;
(ii) a reduction by the Company in Executive's Base Salary as in
effect on the date hereof or as the same may be increased from time to
time;
(iii) the relocation of Executive without his consent to a location
more than fifty (50) miles from his principal office on the date hereof or
requiring Executive to be based anywhere other than the Executive's
principal office on the date hereof, except for reasonably required travel
on the Company's business;
(iv) the failure by the Company, without Executive's consent, to pay
to Executive any portion of Executive's current compensation (including
Base Salary and bonus), or to pay to the Executive any other compensation
within seven (7) days of the date such compensation is due;
(v) the failure by the Company to continue in effect any
compensation plan in which Executive participates on the date hereof,
which is material to Executive's total compensation, including but not
limited to the Company's Executive Management Target Incentive Plan, any
long-term incentive plan, the Individual SERP and the SERP, or any
substitute plans, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan,
or the failure by the Company to continue the Executive's participation in
such plan (or in such substitute or alternative plan) on a basis not
materially less favorable in terms of the amount of benefits provided;
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(vi) the failure by the Company to continue to provide Executive
with benefits substantially similar to those enjoyed by Executive on the
date hereof under any of the Company's pension, life insurance, medical,
health and accident or disability plans, the taking of any action by the
Company which would directly or indirectly materially reduce any of such
benefits or deprive Executive of any material fringe benefit enjoyed by
Executive on the date hereof, or the failure by the Company to provide
Executive with the number of paid vacation days to which the Executive is
entitled under this Agreement; or
(vii) any purported termination of Executive's employment which is
not effected pursuant to a Notice of Termination satisfying the
requirements of Section 7.1 (for purposes of this Agreement, no such
purported termination shall be effective).
The Executive's right to terminate the Executive's employment for
Good Reason shall not be affected by the Executive's incapacity due to physical
or mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
6.8 "Person". Any individual, corporation, bank, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
other entity.
6.9 "Present Value". The term "Present Value" on any particular date
shall have the same meaning as provided in Section 280G(d)(4) of the Code.
7. Termination Procedures.
7.1 Notice of Termination. During the Term of this Agreement, any
purported termination of Executive's employment (other than by reason of death)
shall be communicated by written Notice of Termination from one party hereto to
the other party hereto in accordance with Section 11. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated. Further, a Notice of Termination for Cause is required to include the
information set forth in Section 6.2.
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18
7.2 Date of Termination. "Date of Termination," with respect to any
purported termination of Executive's employment during the Term of this
Agreement, shall mean (i) if Executive's employment is terminated by his death,
the date of his death, (ii) if Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination is given (provided that
Executive shall not have returned to the full-time performance of Executive's
duties during such thirty (30) day period), and (iii) if Executive's employment
is terminated for any other reason, the date specified in the Notice of
Termination (which, in the case of a termination by the Company, shall not be
less than thirty (30) days (except in the case of a termination for Cause) and,
in the case of a termination by the Executive, shall not be less than thirty
(30) days nor more than sixty (60) days, respectively, from the date such Notice
of Termination is given); provided, however, that the "Date of Termination" for
purposes of this Agreement shall not be the last day of the Company's fiscal
year and, in the event the last day of the fiscal year is designated as the
"Date of Termination", the "Date of Termination" for purposes hereof shall
automatically be the first day of the next following fiscal year.
8. Contract Non-Assignable. The parties acknowledge that this
Agreement has been entered into due to, among other things, the special skills
of Executive, and agree that this Agreement may not be assigned or transferred
by Executive, in whole or in part, without the prior written consent of the
Company.
9. Successors; Binding Agreement.
9.1 In addition to any obligations imposed by law upon any successor
to, or transferor of, the Company, the Company will require any successor to, or
transferor of, all or substantially all of the business and/or assets of the
Company (whether direct or indirect, by purchase, merger, reorganization,
liquidation, consolidation or otherwise) to expressly assume and agree to
perform this Agreement, in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as the Executive would be entitled to hereunder if the
Executive were to terminate the Executive's employment for Good Reason, except
that, for purposes of implementing the foregoing, the date on which
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any such succession becomes effective shall be deemed the Date of Termination.
9.2 This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees and by the Company's
successors and assigns. If Executive shall die while any amount would still be
payable to Executive hereunder (other than amounts which, by their terms,
terminate upon the death of Executive) if Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the executors, personal representatives or
administrators of Executive's estate.
10. Other Agents. Nothing in this Agreement is to be interpreted as
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to the Company.
11. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or seven days after mailing if mailed, first class,
certified mail, postage prepaid:
To the Company: Xxxxxx International, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
ATTN: _________________________
With a copy to: Xxxxxxx X. Xxxxxx, III
Xxxxxx International, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
To the Executive: Xxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxxxxxx Xxxxxxxx LLP
ATTN: Xxxxxxx X. Xxxxxx, Xx.
Suite 2800
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 000000-0000
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
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12. Provisions Severable. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
13. Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or the future performance of any such term
or condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
14. Indemnification. During the term of this Agreement and after
Executive's termination for the period of time set forth in Section 6.7 of the
Recapitalization Agreement, the Company shall indemnify Executive and hold
Executive harmless from and against any claim, loss or cause of action arising
from or out of Executive's performance as an officer, director or employee of
the Company or any of its subsidiaries or other affiliates or in any other
capacity, including any fiduciary capacity, in which Executive serves at the
Company's request, in each case to the maximum extent permitted by law and under
the Company's Articles of Incorporation and By-Laws (the "Governing Documents"),
provided that in no event shall the protection afforded to Executive hereunder
be less than that afforded under the Governing Documents as in effect on the
date of this Agreement except from changes mandated by law. During the Term and
for the period of time set forth in Section 6.7 of the Recapitalization
Agreement, Executive shall be covered by any policy of directors and officers
liability insurance maintained by the Company for the benefit of its officers
and directors.
15. Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto.
16. Governing Law. The validity and effect of this Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Delaware.
17. Arbitration of Disputes; Expenses. All claims by Executive for
compensation and benefits under this Agreement shall be directed to and
determined by the Board and shall be in writing. Any denial by the Board of a
claim for benefits under
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this Agreement shall be delivered to Executive in writing and shall set forth
the specific reasons for the denial and the specific provisions of this
Agreement relied upon. The Board shall afford a reasonable opportunity to
Executive for a review of a decision denying a claim and shall further allow
Executive to appeal to the Board a decision of the Board within sixty (60) days
after notification by the Board that Executive's claim has been denied. To the
extent permitted by applicable law, any further dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Atlanta, Georgia, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. In the event the Executive
incurs legal fees and other expenses in seeking to obtain or to enforce any
rights or benefits provided by this Agreement and is successful, in whole or in
part, in obtaining or enforcing any material rights or benefits through
settlement, arbitration or otherwise, the Company shall promptly pay Executive's
reasonable legal fees and expenses incurred in enforcing this Agreement and the
fees of the arbitrator. Except to the extent provided in the preceding sentence,
each party shall pay its own legal fees and other expenses associated with any
dispute.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
EXECUTIVE:
/s/ XXXXXX X. XXXXXXX
_________________________________
XXXXXX X. XXXXXXX
COMPANY:
By: /s/ XXXXXX INTERNATIONAL, INC.
______________________________
XXXXXX INTERNATIONAL, INC.
22
SCHEDULE A to
Employment Agreement
PUT AND CALL RIGHTS OF THE
EXECUTIVE AND THE COMPANY
Capitalized terms which are used in this Schedule A and which are
not otherwise defined shall have the meanings ascribed to such terms in the
Agreement to which this Schedule is attached and of which it forms a part,
except where specifically noted that any such term has the meaning ascribed to
such term in the Employee Shareholders Agreement being entered into by and among
the Company, Xxxxxx Brothers Merchant Banking Partners II L.P. ("LB MBP II"),
the Executive and other executives and key employees of the Company (a term
sheet for which is attached hereto).
A. Triggering Events
1. Termination by the Company for Cause; Voluntary Termination
without Good Reason. If, during the Term, the Executive's employment is either
(x) involuntarily terminated by the Company for Cause or (y) terminated by the
Executive without Good Reason:
(a) All shares of Company common stock ("Common Stock") purchased by
the Executive pursuant to the exercise of stock options ("Options")
granted to the Executive ("Option Shares") may be called by the Company at
the lesser of (x) the purchase price paid by the Executive therefor (the
"Exercise Price") and (y) Fair Market Value (as defined in Section D
hereof).
(b) All Options then held by the Executive shall be forfeited,
without any consideration being paid therefor by the Company, as of the
Executive's date of termination of employment with the Company
("Termination Date").
(c) All shares of Common Stock owned by the Executive, other than
Option Shares ("Purchased Shares"), may be called by the Company at Fair
Market Value.
(d) The Executive shall have no right to put his Option Shares or
Purchased Shares to the Company as a result of such termination of
employment.
2. Termination by the Company Without Cause; Termination by the
Executive with Good Reason; Retirement. If, during the Term, the Executive's
employment with the Company is either (x) involuntarily terminated by the
Company without Cause, (y) terminated by the Executive for Good Reason or (z)
terminated as a result of the Executive's Retirement (as defined in the Employee
Shareholders Agreement) from employment
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2
with the Company at or after attainment of age 65 (or such earlier retirement
age as permitted under any agreement entered into after Effective Time (as
defined in the Employment Agreement) between the Company and the Executive or if
the Board shall consent thereto in writing):
(a) All Option Shares held for at least six months by the Executive
may be called by the Company at Fair Market Value.
(b) All Purchased Shares held for at least six months by the
Executive may be called at Fair Market Value.
(c) The Executive shall have no right to put his Option Shares or
Purchased Shares to the Company as a result of such termination of
employment.
(d) Except as provided under clauses (a) and (b) above, the Company
shall have no right to call Options, Option Shares or Purchased Shares
upon a termination of employment covered by this Section 2.
Notwithstanding the foregoing, if the Executive elects, he may override the
calls made pursuant to paragraphs (a) or (b) above and retain all or any portion
of his Option Shares and Purchased Shares by giving the Company written notice
of such override within 30 days of his receipt of the call notice.
3. Termination due to Death or Disability. If, during the Term, the
Executive's employment is terminated due to his death or Disability, the
Executive (or his legal representative or the legal representative of his
estate, if applicable) may put all Options, Option Shares and Purchased Shares
to the Company or the Company may call such Options, Option Shares and Purchased
Shares, in each case at Fair Market Value (in the case of Options, net of the
Exercise Price); provided, however, that if the Executive elects, he may
override such call and retain all or any portion of his Options, Option Shares
and Purchased Shares by providing the Company with a written notice of such
override within 30 days of his receipt of the Company's call notice.
[4. Sale of a Company Division. If the Company shall sell the
business division in which the Executive is principally employed (a "Sale"), the
Company may call the Executive's Options, Option Shares and Purchased Shares at
Fair Market Value; provided, however, that if the Executive elects, he may
override such call by the Company and retain all or any portion of his Options,
Option Shares and Purchased Shares by providing the Company with a written
notice of such override within 30 days of his receipt of the Company's call
notice. The
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Executive shall have no right to put his Options, Option Shares or Purchased
Shares to the Company as a result of such a Sale.](1)
B. Notice of Puts and Calls; Exercise Rights.
1. If the Company intends to call any or all of the Executive's
Options, Option Shares or Purchased Shares as provided herein, it will provide
prior written notice to the Executive (or the Executive's legal representative
or the legal representative of the Executive's estate, as applicable), such
notice to include the Fair Market Value of the Options, Option Shares or
Purchased Shares, as the case may be, and to be given no later than 75 days
after the Executive's Termination Date [or Sale (as applicable)](2). If the
Executive (or the Executive's legal representative or the legal representative
of his estate, as applicable) is entitled to put any or all of his Options,
Option Shares or Purchased Shares, notice of such intent must be given by the
Executive no later than 90 days after the Company gives notice that it will not
exercise its call.
2. Neither the Executive nor the Company shall have any put or call
rights following a Public Offering (as such term is defined in the Employee
Shareholders Agreement).
3. Any exercise of put or call rights may be for all or a portion of
the Options, Option Shares and Purchased Shares subject thereto, as determined
in the sole discretion of the holder of such rights.
C. Limitation on Put and Call Rights. Notwithstanding anything in this
Schedule A to the contrary, the Company shall not be required to purchase any
Options, Option Shares or Purchased Shares (whether through the exercise of a
put or a call) if such purchase would be, or would result in, a violation of the
terms of its then existing debt agreements or any applicable law or regulation.
In addition, no such put or call will occur if, in the reasonable discretion of
the Board, such purchase would be reasonably likely to (i) impair the Company's
available cash, (ii) require unsuitable additional debt to be incurred by the
Company or (iii) result in any other adverse economic or financial condition, in
each case only to the extent that any such event described in clauses (i), (ii)
or (iii), individually or in the aggregate, would have or would reasonably
----------
(1) Include only for employees employed in any of the three business
divisions.
(2) Include bracketed language only for division employees.
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be expected to have a material adverse effect on the financial condition of the
Company.
D. Fair Market Value. For purposes hereof, the term "Fair Market Value"
shall mean, in respect of each share of Common Stock:
(i) To the extent the call or put, as the case may be, occurs
concurrently with or within 30 days of a Public Offering, the
offering price to the public per share of common stock of such
Public Offering;
(ii) To the extent the call or put, as the case may be, occurs
concurrently with or within 30 days of a Change of Control, the
value of the Company's total equity, as determined based upon the
price per share paid in connection with such Change of Control,
divided by the total number of shares of Common Stock then
outstanding;
(iii) To the extent clauses (i) and (ii) do not apply and a regular
trading market for the Company's common stock exists following a
Public Offering, the average closing price of such common stock for
10 consecutive trading days ending on the trading day immediately
prior to such call or put; and
(iv) At all other times, the fair market value of the Company's total
equity, as determined by the Board in good faith divided by the
total number of shares of Common Stock then outstanding; provided,
however, that if the Executive disputes the Board's determination,
within 10 days of the Executive's receipt of notice of the Board's
determination, the Executive and the Board shall jointly select a
qualified independent financial advisor to make such determination,
which determination shall be final and binding upon the parties,
provided, further, that the fees and costs of such financial advisor
in connection with its determination shall be borne equally by the
Company and the Executive unless such financial advisor's fair
market value determination is 10% or more greater than the Board's
determination, in which case such fees and costs shall be borne
entirely by the Company.
26
EXHIBIT A to
Employment Agreement
SUMMARY OF TERMS
EMPLOYEE SHAREHOLDERS AGREEMENT
Set forth below is a summary of certain terms of agreements
ancillary to the Employment Agreement (the "Employment Agreement") to which this
Summary of Terms is attached and of which it forms a part, including the
Employee Shareholders Agreement and the related Option Agreements. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth in
the Employment Agreement.
EQUITY OWNERSHIP
FOLLOWING
RECAPITALIZATION
Purchased Shares After the closing contemplated by the
Recapitalization Agreement, no less than $15.0
million of the fully diluted equity of the Company
will be purchased by the top 21 executives and key
employees (the "Managers") and approximately 20
other management employees at a purchase price equal
to the price per share of Company common stock paid
in connection with the recapitalization, which is
$30.00 per share (the "Purchased Shares").
OPTION AGREEMENT
Stock Options As soon as practicable after the closing of the
recapitalization, the Company shall grant the
Managers nonqualified options (the "Options")
exercisable for common stock to purchase an
aggregate of 8.0% of the Company's initial
fully-diluted common stock. One- half of such
Options shall be granted as "Time Options"; one-half
of such Options shall be granted as "Performance
Options", which will be earned upon achievement of
the "Management
27
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Case" performance as described below.
The Company shall reserve for possible future
issuance to Managers and other executives options to
purchase an aggregate of 100,000 shares of the
Company's common stock at times and on terms to be
determined by the Compensation Committee of the
Board of Directors.
Except as otherwise provided herein, the terms of
the option plans and agreements governing the
Options shall be substantially similar to the
Company's 1998 Option Plan.
--Option Term The option term of the Options shall be 10 years
from the Effective Time (as defined in the
Recapitalization Agreement) and 10 years after the
grant with respect to options subsequently granted;
provided, however, that exercisable options shall
expire earlier upon termination of employment as
follows:
Termination for Cause/Voluntary Termination by
Executive Without Good Reason: Immediately upon
termination of employment.
Termination Without Cause/ Termination by Executive
with Good Reason/Death/Disability/Sale of Division:
One year after termination of employment.
Retirement: At the end of the option term.
Unexercisable Options will terminate upon
termination of employment, unless acceleration in
connection with such termination is explicitly
provided for.
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Upon a Change-in-Control, the Compensation Committee
may terminate the Options, so long as the Executives
are cashed out of, or are permitted to exercise,
their exercisable Options prior to the
Change-in-Control.
--Option Exercise Price Options shall be granted at an exercise price equal
to the price per share of Company common stock paid
in connection with the recapitalization, which is
$30.00 per Share.
--Dilution of Options Option holders shall be subject to the same dilution
as the common stockholders.
--Reallocation Shares subject to Options that are forfeited may be
reallocated to other employees as determined by the
Compensation Committee in its sole discretion.
Transfer Options may be transferred to Permitted Transferees
(as defined below) so long as such Permitted
Transferee agrees to be bound by the terms of all
applicable agreements.
Vesting of Equity Rights
--Normal Vesting of Except as provided in the next paragraph, Time
Time Options Options shall become exercisable with respect to 20%
of the shares subject to such Options on each of the
first five anniversaries of the Effective Time as
and when the Executive's employment continues
through and including the date of each such
anniversary. Time Options shall expire and no longer
be exercisable as provided under the "Option Term"
section herein, but all Time Options shall
accelerate and become fully exercisable as provided
under the "Accelerated
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Vesting of Options" section herein.
The Time Options for Executives who are age 61 or
older at the Effective Time shall vest with respect
to 33 1/3% of the shares subject to such Options on
each of the first three anniversaries of the
Effective Time, provided that the Executive's
employment continues through and including the date
of each such anniversary; and provided, further,
that full vesting at Retirement for such Executives
shall only occur if Retirement occurs three or more
years after the Effective Time. Nothing herein shall
be construed as affecting any liquidity rights or
restrictions on transfer specifically set forth
herein.
--Normal Vesting of Performance Options shall become exercisable at the
Performance Options end of six years, whether or not the EBITDA (as
defined below) targets are achieved, but become
exercisable earlier with respect to up to 20% of the
shares subject to the Performance Options, on each
of the first five anniversaries of the Effective
Time, to the extent the EBITDA for the fiscal year
most recently completed (the "Fiscal Year") equals
or exceeds the EBITDA targets (each, a "Target"), as
set forth in Schedule A attached hereto.
For executives who are age 61 or older at the
Effective Time, the applicable vesting percentage
for Performance Options shall be 33 1/3% for each of
the first three anniversaries of the Effective Time,
using the EBITDA Targets on Schedule A, and 33 1/3%
shall be substituted for 20% each place in this
section where 20% appears. Notwithstanding the
foregoing,
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Performance Options shall vest on the following
dates at the following minimum percentages (to the
extent not already vested) for such Executives if
Retirement occurs three or more years after the
Effective Time: (i) the date that is three years
after the Effective Time, 50% of the aggregate
shares subject to the Performance Options; (ii) the
date that is four years after the Effective Time,
66.70% of the aggregate shares subject to the
Performance Options; (iii) the date that is five
years after the Effective Time, 83.30% of the
aggregate shares subject to the Performance Options
and (iv) the date that is six years after the
Effective Time, 100% of the aggregate shares subject
to the Performance Options. Nothing herein shall be
construed as affecting any liquidity rights or
restrictions on transfer specifically set forth
herein.
If the Company's EBITDA for a Fiscal Year is less
than 100% of the Target for such Fiscal Year (a
"Missed Year"), such Performance Options shall
become exercisable with respect to a portion of the
shares subject to Performance Options in an amount
equal to the product of (a) 20% of the total number
of shares subject to Executive's Performance Options
multiplied by (b) the Applicable Percentage (as set
forth in Schedule B attached hereto).
If either all or a portion of the Executive's
Performance Options do not become exercisable in any
year pursuant to the above, the Executive may
"catch-up" if the Cumulative EBITDA Targets (as set
forth in Schedule A attached hereto) are satisfied.
The amount
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that would vest is equal to 40% if in year 2, 60% if
in year 3, 80% if in year 4 and 100% if in year 5,
less the number of Executive's Performance Options
which had previously vested.
Accelerated Vesting
of Options
--Time Options Unvested Time Options shall become fully exercisable
upon (i) death, (ii) disability, (iii) Change-in-
Control or (iv) Retirement (as defined below). In
addition, upon a Termination without Cause or a
Termination by Executive with Good Reason, Time
Options shall become fully exercisable in the event
the Executive had been employed by the Company for
at least three years from the date of the Effective
Time.
--Performance Options Performance Options shall become fully exercisable
upon a Change-in-Control if, and only if, (a) 100%
or more of the EBITDA Target has been achieved in
each Fiscal Year prior to such Change- in-Control or
(b) 100% of the Cumulative EBITDA Target has been
achieved in the Fiscal Year immediately preceding
such Change- in-Control. Except for the above and
any other acceleration occurring by reason of the
attainment of the EBITDA Targets, vesting of
Performance Options shall not accelerate for any
reason. In addition, upon a Termination without
Cause or for a Termination by Executive with Good
Reason, Performance Options shall become fully
exercisable in the event the Executive had been
employed by the Company for at least three years
from the date of the Effective Time.
Adjustments In the event of any change in the
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outstanding Common Stock by reason of a stock split,
spin-off, stock dividend, stock combination or
reclassification, recapitalization, consolidation or
merger, or similar event, the Compensation Committee
shall adjust appropriately the number of shares
subject to Options and make other revisions as it
deems are equitably required.
EMPLOYEE SHAREHOLDERS
AGREEMENT
Transfer Restrictions Except as provided below, transfers of Purchased
Shares or shares purchased upon exercise of Options
("Option Shares") will not be permitted prior to the
fifth anniversary of the Effective Time. Option
Shares and Purchased Shares may be transferred prior
to the fifth anniversary of the Effective Time (i)
to a Permitted Transferee so long as such Permitted
Transferee agrees to be bound by the terms of all
applicable agreements, (ii) pursuant to an exercise
of "Tag-Along" or "Drag- Along" Rights described
below, (iii) pursuant to an exercise of call or put
rights set forth in the Employment Agreement, (iv)
pursuant to an exercise of the registration rights
described below or (v) in connection with a
Change-in-Control so long as long as such transfers
are on a pro rata basis with transfers made by
Xxxxxx Brothers Merchant Banking Partners II L.P.
("LB MBP II") in connection with such Change-in-
Control. Except as provided hereinabove or as agreed
to by the Compensation Committee, Options will be
nontransferable, but may be exercised after an
Optionholder's death by his or her designated
beneficiary or estate.
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In addition to the transfer restrictions of the
Employee Stockholder Agreement, any sale of
Purchased Shares or Option Shares shall in all cases
be completed in compliance with applicable
securities laws. The Company will register all
Option Shares on Form S-8 under the Securities Act
of 1933.
Right of First Refusal The Company shall have a right of first refusal on
all management equity rights (which rights the
Company may assign to LB MBP II) until the transfer
restrictions expire. Such right shall not apply to
any transfer to a Permitted Transferee so long as
such Permitted Transferee agrees to be bound by the
terms of all applicable agreements.
Registration Rights Each Executive will have "piggy back" registration
rights if (i) the Company is registering shares of
its common stock under the Securities Act of 1933
for its own account (subject to customary exceptions
for registrations related to exchange offers or
benefit plans), provided that such rights shall only
be available if LB MBP II is selling shares of
common stock for its own account in connection with
such registration, in each case on a pro rata basis
with LB MBP II or (ii) in any Public Offering in
which shares owned by LB MBP II are offered, on a
pro rata basis.
Beginning on the later of a Public Offering and the
fifth anniversary of the recapitalization, each
Executive will have "demand" registration rights,
subject to customary threshold provisions and
black-out provisions.
Tagalong/Dragalong In the event that LB MBP II or one
34
9
of its affiliates is transferring any shares of
common stock of the Company to a third party, it
will give each Executive notice of such proposed
transfer, including the relevant terms thereof.
Within 30 days of receipt of such notice, each
Executive may elect to sell his Option Shares or
Purchased Shares to such third party on a pro rata
basis with LB MBP II. Notwithstanding the foregoing,
the "tag-along" rights shall not apply to any sale
of LB MBP II or its affiliates pursuant to a
syndication of its equity interest in the Company
during the six month period after the Effective
Time, provided that the aggregate amount of such
sale does not exceed $100 million.
In the event the LB MBP II or one of its affiliates
is transferring shares of common stock of the
Company to any third party that has made an offer to
purchase such shares, LB MBP II will have the right
to cause each Executive to sell his Option Shares or
Purchased Shares to such third party on a pro rata
basis.
DEFINITIONS
EBITDA "EBITDA" shall be defined in a manner consistent
with the Company's debt instruments entered into in
connection with the recapitalization contemplated by
the Recapitalization Agreement.
Permitted Transferees "Permitted Transferees" shall mean (i) each
Executive's heirs, executors, administrators,
testamentary trustees, legatees, beneficiaries or
charitable remaindermen, (ii) a trust the
beneficiaries of which include only such Executive,
such Executive's spouse, lineal
35
10
descendants or any other member of the family of
such Executive; or (iii) any person if LB MBP II has
given its prior written consent to the applicable
transfer.
Public Offering "Public Offering" shall mean the sale of shares of
any class of the Company's stock to the public
pursuant to an effective registration statement
(other than a registration statement on Form S-4 or
S-8 or any similar or successor form) filed under
the Securities Act of 1933 which results in an
active trading market of 25% or more of the
outstanding shares of the Company's common stock.
There shall be deemed to be an "active trading
market" if the Company's common stock is listed or
quoted on a national exchange or the NASDAQ National
Market.
Retirement "Retirement" shall mean normal retirement under the
terms of any tax-qualified retirement plan of the
Company or retirement, which retirement occurs no
earlier than three years after the Effective Time,
except as permitted under any agreement between the
Company and the Executive to the extent such
agreement (i) by its terms currently provides that
retirement is to begin upon attainment of age 65
(even if earlier than the third anniversary of the
Effective Time) or provides that retirement is to
begin after age 64 (which occurs three years after
the Effective Time) or (ii) is entered into after
the Effective Time and permits the Executive to
retire prior to attainment of age 65 and the third
anniversary of the Effective Time. Except as
provided in the preceding
36
sentence, any purported retirement prior to the
third anniversary of the Effective Time, shall be
treated the same as a voluntary termination.
Schedule A
EBITDA Targets
($ in millions)
"Management
Case" Cumulative
EBITDA Target* EBITDA Target*
-------------- --------------
1999 $166.2 $166.2
2000 $223.7 $389.9
2001 $246.3 $636.2
2002 $270.7 $906.9
2003 $295.9 $1,202.8
* Upon disposition or acquisition of any business or substantial portion of the
assets of the Company or another company, the EBITDA Targets for the year of
such disposition or such acquisition and each subsequent year shall be adjusted
to eliminate or include, as the case may be, the income and expense to the
business or assets that were subject to disposition or acquisition, but only to
the extent not already done so in connection with the calculation of EBITDA.
Such adjustments must be consented to by a majority of the non-management
directors of the Board of the Company. If such directors cannot so consent, the
adjustment proposal shall be submitted to the Company's independent auditors,
who can consult with the necessary consultants for binding resolution.
37
Schedule B
Applicable Percentage
Percentage of EBITDA
Target Achieved Applicable
(annual or cumulative) (Pct.) Percentage
----------------------------- ----------
Less than 85 0.00
85 25.00
86 30.00
87 35.00
88 40.00
89 45.00
90 50.00
91 55.00
92 60.00
93 65.00
94 70.00
95 75.00
96 80.00
97 85.00
98 90.00
99 95.00
100 100.00
38
Exhibit B
XXXXXX INTERNATIONAL, INC.
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
FOR XXXXXX X. XXXXXXX
1. Purpose - The purpose of this Supplemental Executive Retirement Plan (the
"SERP") is to provide Xxxxxx X. Xxxxxxx (the "Executive") with a
retirement benefit payable as a supplement to his vested benefit under The
Xxxxxx Retirement Plan.
2. Definitions
x. Xxxxxx Plan is The Xxxxxx Retirement Plan, as amended and restated
effective January 1, 1995, including any future amendments or
restatements adopted and effective while Executive is an employee of
the Company or its affiliates.
b. Company shall mean Xxxxxx International, Inc. and its successors.
c. Disability shall mean periods of time during which
(i) Executive is totally and permanent disabled, and
(ii) Executive is receiving Social Security disability benefits.
d. Effective Date of this amendment and restatement of the SERP is
____________, 1999. The original effective date of this SERP was May
11, 1998.
e. Excess Benefit Plan is the Xxxxxx, Inc. and Subsidiaries
Supplemental Retirement Benefit Plan, as in effect on November 3,
1995, including any future amendments or restatements adopted and
effective while Executive is an employee of the Company or its
affiliates.
f. Executive shall mean Xxxxxx X. Xxxxxxx.
g. Internal Revenue Code shall mean the Internal Revenue Code of 1986,
as amended and in effect at Executive's Termination Date.
h. Normal Retirement Date is October 16, 2005.
i. SERP is this Supplemental Executive Retirement Plan sponsored by the
Company for Executive.
39
j. Termination Date is the date on which the employment relationship
between Executive and the Company (including any "affiliated
company" as defined in the Xxxxxx Plan) ceases.
3. Years of Benefit Service shall mean the years of benefit service granted
to Executive under this SERP and the years of "Benefit Service" (as that
term is defined in the Xxxxxx Plan) granted to Executive under the Xxxxxx
Plan. Years of Benefit Service shall be determined in accordance with the
following schedule:
Years of Total Years
Years of Benefit Benefit of Vested
Service under the Service under Benefit
Age Xxxxxx Plan the SERP Service
--- ----------- -------- -------
58 1 + 0 = 0
59 2 + 0 = 0
60 3 + 0 = 0
61 4 + 0 = 0
62 5 + 7 = 12
63 6 + 8 = 14
64 7 + 9 = 16
65 8 + 10 = 18
Years of Benefit Service under the SERP shall continue to accrue during
any period of Disability provided that Years of Benefit Service continue
to accrue under the Xxxxxx Plan.
4. Vested Retirement Benefits payable under this SERP shall equal (a) less
(b) where:
(f) is the monthly retirement income that would be payable to Executive
under the provisions of the Xxxxxx Plan, assuming
(i) that in determining the fraction for purposes of Section
6.1(a)(i) of the Xxxxxx Plan, the numerator shall be his total
Years of Benefit Service determined in accordance with
Paragraph 3 above, at his age when his employment terminates
and the denominator of which is 18; and
(ii) that the Xxxxxx Plan does not contain the limitation on
compensation imposed by Section 401(a)(17) of the Internal
Revenue Code or the
40
limitation on benefits imposed by Section 415 of
the Internal Revenue Code;
and
(g) is the sum of (i) and (ii), where
(i) is the monthly retirement income actually payable to Executive
under the Xxxxxx Plan; and
(ii) is the monthly retirement income actually payable to Executive
under the Excess Benefit Plan.
Vested retirement benefits are payable on or after Executive's Termination
Date provided he has obtained a fully vested interest under the Xxxxxx
Plan. No benefits shall be payable under this SERP until Executive has
obtained a fully vested interest under the Xxxxxx Plan. No benefits are
payable during continued employment. The above benefit is on a life
annuity basis. If an optional form of benefit is desired, the benefit
above will be adjusted by the actuarial factors used by the Xxxxxx Plan.
In determining benefits under this Paragraph, amounts described in
Paragraphs (b)(i) and (b)(ii) above that are paid in a form other than a
straight life annuity shall be valued as a straight life annuity using the
actuarial factors used by the Xxxxxx Plan.
5. Executive shall receive the following benefits as defined in the Xxxxxx
Plan, which benefits shall be calculated on the basis of the benefit
formula set forth in Paragraph 4 above:
a. Benefits due to the pre-retirement death of Executive;
b. Normal and optional forms of payment under the Xxxxxx Plan provided
that, except as provided under Paragraph 5(d), the form of payment
under this SERP shall be the same as the form of payment elected by
Executive under the Xxxxxx Plan;
c. If Executive elects for payment of his vested retirement benefits to
commence prior to his Normal Retirement Date but after 10 Years of
Vested Benefit Service as determined under Paragraph 3, his vested
retirement benefits will be reduced by .3% for each full month by
which the date his benefits begin precedes his Normal Retirement
Date. If Executive has less than 10 Years of Vested Benefit Service,
his vested retirement benefits shall be reduced on an
41
actuarially equivalent basis using the actuarial factors used by the
Xxxxxx Plan.
d. Notwithstanding the above, if Executive's employment is terminated
within 24 months following a change in control (as such term is
defined in Executive's employment agreement) under circumstances
that would entitle him to benefits under his employment agreement
upon such termination, Executive may elect on such form and in such
manner as determined by the Board of Directors of the Company or if
appointed by the Board to administer the Plan, the Compensation
Committee of the Board of Directors, to receive his benefit in the
form of a single lump sum payment (regardless of the form of payment
elected by Executive under the Xxxxxx Plan and regardless of whether
a lump sum option is available under the Xxxxxx Plan). The lump sum
payment shall be actuarially equivalent to the present value of
Executive's benefit under the Plan expressed as a life annuity,
calculated using the same actuarial factors used by the Xxxxxx Plan.
The lump sum payment shall be made to Executive within 30 days of
the date he would otherwise have commenced receiving payments under
Paragraph 4 above.
6. Successors and Assigns; Non-Alienation of Benefits - This Plan shall inure
to the benefit of and be binding upon the parties hereto and their
successors and assigns; provided, however, to the maximum extent permitted
by law, no benefit under this SERP shall be assignable or subject in any
manner to alienation, sale, transfer, claims of creditors, pledge,
attachment or encumbrances of any kind. In addition to any obligations
imposed by law upon any successor to the Company, the Company will require
any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to substantially all of the business or assets
of the Company to expressly agree to assume the Plan and to perform the
obligations under this Plan in the same manner that the Company would be
required to perform them.
7. Administration - The Board of Directors of the Company or, at its
discretion, the Compensation Committee of the Board of Directors, shall
administer, construe, and interpret this Plan. No member of the Board of
Directors or the Committee, as the case may be, shall be liable for any
act done or determination made in good faith. The construction and
interpretation by the Board of Directors or the Committee of any provision
of this Plan shall be final and conclusive. The Board of Directors or the
Committee may, in its discretion, delegate its duties to an officer or
42
employee or committee composed of officers or employees of the Company.
8. Amendment or Termination - The Board of Directors and Executive may amend
this SERP from time to time in any respect with the consent of the other
party. This Plan may not be terminated without the consent of the Company
through its Board of Directors or its designated Committee or officer and
Executive.
9. Construction of the Plan - This SERP is unfunded. This SERP shall be so
construed that it will be maintained primarily for the purpose of
providing certain retirement, death and disability benefits for Executive.
This SERP and the rights and obligations of the parties thereunder, shall
be construed in accordance with applicable federal law and, to the extent
not preempted by federal law, in accordance with the laws of the State of
Alabama.
10. Denied Claims
a. If any application for payment of a benefit under the SERP shall be
denied, the Company shall:
(i) Notify Executive within a reasonable time of such denial
setting forth the specific reasons therefor; and
(ii) Afford Executive a reasonable opportunity for a full and fair
review of the decision denying the claim.
(b) Notice of such denial shall set forth, in addition to the specific
reasons for the denial, the following:
(i) Reference to pertinent provisions of the SERP;
(ii) Such additional information as may be relevant to denial of
claim;
(iii) An explanation of the claims review procedure;
(iv) Advice that Executive may request the opportunity to review
pertinent plan documents and submit a statement of issues and
comments
c. Within 60 days following advice of denial of his claim, upon request
made by Executive for a review of such denial, the Company shall
take appropriate steps to review its decision in light of any
further information or comments submitted by Executive. The
43
Company shall be empowered to hold a hearing at which Executive
shall be entitled to present the basis of his claim for review and
at which he may be represented by counsel.
d. The Company shall render a decision within 60 days after Executive's
request for review (which may be extended to 120 days if
circumstances so require) and shall advise Executive in writing of
its decision on such review, specifying its reasons and identifying
appropriate provisions of the Plan.
Signed and agreed to this _______ day of _________________, 199___.
XXXXXX INTERNATIONAL, INC.
By:
---------------------------
Its:
--------------------------
EXECUTIVE
-------------------------------
Xxxxxx X. Xxxxxxx
