(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT 10.58
EMPLOYMENT AGREEMENT
AGREEMENT, dated October 21, 2002 between CONSUMER PROGRAMS
INCORPORATED, a Missouri corporation (the "Corporation"), and
XXXXX X. DEAL (the "Executive").
WHEREAS, the Corporation desires to employ the Executive in
the capacity of Executive Vice President of Field Operations, Portrait
Studio Division and the Executive will serve as one of the key executives
of the Corporation;
WHEREAS, there is much competition for the type of business
performed by the Corporation in the locales in which the Corporation
operates, and the Corporation and Executive acknowledge that the Corporation
is active in the product markets in which it competes;
WHEREAS, Executive, during her employment, will be entrusted
with confidential information;
WHEREAS, Executive and the Corporation recognize and
acknowledge that, to ensure the continued growth and stability
of the Corporation, it is necessary to obtain an agreement from
Executive not to compete with the Corporation and not to disclose
confidential information of the Corporation; and
WHEREAS, the Corporation desires that the Executive commence
and continue employment with the Corporation as a result of her
potential for making future contributions to the Corporation, and
the Executive is willing to make a commitment to commence and
continue such employment upon the terms and subject to the
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the parties
hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliated Companies" shall mean any corporation (or
other business entity) controlling, controlled by or under common control
with the Corporation.
(b) "Beneficiary" shall mean the person designated in writing by
the Executive as her beneficiary under this Agreement, or
in the absence of such designation, her estate.
(c) "Cause" shall mean:
(1) prior to a Change of Control, (i) conduct or activity of
the Executive materially detrimental to the Corporation's reputation or
business (including financial) operations; (ii) gross or habitual neglect
or breach of duty or misconduct of the Executive in
discharging the duties of her position; or (iii) prolonged absence
by the Executive from her duties (other than on account of illness
or disability) without the consent of the Corporation.
(2) after a Change of Control, (i) an act or acts of
dishonesty on the Executive's part which are intended to result in her
substantial personal enrichment at the expense of the Corporation;
(ii) any material violation by the Executive of her obligations and
covenants pursuant to this Agreement which is demonstrably willful
and deliberate on the Executive's part and which results in
material injury to the Corporation; or
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(iii) the conviction of Executive of a felony or of a crime
involving moral turpitude.
(d) A "Change of Control" shall mean a change in control
of a nature that would be required to be reported in response to
Item 1(a) of the Current Report on Form 8-K, as in effect on the date
hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended ("Exchange Act") or would have been required to be
so reported but for the fact that such event had been "previously
reported" as that term is defined in Rule 12b-2 of Regulation 12B
of the Exchange Act unless the transactions that give rise to the
change in control are approved or ratified by a majority of the
members of the Incumbent Board of CPI Corp. who are not employees
of the Corporation; provided that, without limitation, notwithstanding
anything herein to the contrary, such a change in control shall be
deemed to have occurred if (a) any Person is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of CPI Corp. representing 40% or more of the
combined voting power of CPI Corp.'s then outstanding securities ordinarily
(apart from rights accruing under special circumstances) having the right
to vote at elections of directors ("Voting Securities"), (b) individual
who constitute the Board of CPI Corp. on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof,
provided that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by CPI Corp.'s shareholders,
was approved by a vote of at least three-quarters of the directors comprising
the Incumbent Board (either by a specific vote or by approval of the proxy
statement of CPI Corp. in which such person is named as a nominee
for director, without objection to such nomination) shall be, for
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purposes of this clause (b), considered as though such person were
a member of the Incumbent Board, or (c) approval by the stockholders of
CPI Corp. of a reorganization, merger or consolidation, in each case,
with respect to which persons who were the stockholders of CPI Corp.
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own, directly or indirectly, more than 50% of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's then
outstanding voting securities, or a liquidation or dissolution of CPI Corp.
or of the sale of all or substantially all of the assets of CPI Corp. For
purposes of this Agreement, the term "Person" shall mean and include any
individual, corporation, partnership, group, association or other "person,"
as such term is used in Section 14(d) of the Exchange Act, other than
CPI Corp., the Corporation or an Affiliated Company or any employee benefit
plan(s) sponsored or maintained by the Corporation or any Affiliated Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as may
be amended from time to time.
(f) "Continuing Directors" shall have the meaning set forth in
Paragraph 3(G) of Article Ten of CPI Corp.'s Certificate of
Incorporation.
(g) "Fiscal Year" shall mean the Fiscal Year of the Corporation.
(h) "Permanent Disability" shall mean the inability of Executive
to perform the services contemplated by Section 4 hereof for a period of at
least one hundred eighty (180) consecutive calendar days or for thirty-five
(35) weeks (whether or not consecutive) in anytwelve (12) month period on
account of any sickness, injury or
other infirmity or disability.
(i) "Retirement" shall mean the Executive's voluntary or
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involuntary termination of employment with the Corporation except for
termination on account of (A) Cause as defined in Subsection 6(b)
hereof, (B) death or (C) Permanent Disability before attaining age
sixty-five (65).
(j) "Term of Employment" shall have the meaning set forth in
Section 3 hereof.
(k) "Vesting Percentage" shall mean the percentage of Supplemental
Retirement Benefits, death benefits, and disability benefits in which
Executive has a nonforfeitable interest (except in the event of termination
for Cause) based upon the number of Years of Service Executive has completed,
determined as follows:
Completed Years of Service Vesting Percentage
-------------------------- ------------------
0 0%
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Notwithstanding anything herein to the contrary, if Executive's
employment with the Corporation terminates following a Change of
Control, unless such termination is for Cause, for purposes of
Subsections 5(g), 5(h), and 5(i) of this Agreement Executive shall
be deemed to have completed ten (10) Years of Service and her
Vesting Percentage shall be deemed to be 100%.
(l) "Year of Service" shall mean any Fiscal Year during which
the Executive has worked for the Corporation at least one thousand (1,000)
hours, including Fiscal Years prior to the effective date of this Agreement.
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2. EMPLOYMENT. The Corporation hereby employs and engages the
services of the Executive as one of its key executives initially in
the position of Executive Vice President of Field Operations of the
Corporation's Portrait Studio Division for the Term of Employment
set forth in Section 3. The Executive agrees to serve the
Corporation for the Term of Employment as provided herein.
3. TERM OF EMPLOYMENT. The Executive's Term of Employment shall be a
period commencing on October 21, 2002 and ending one (1) year thereafter;
provided, however, that upon the expiration of theaforesaid period
(the "Expiration Date") and upon each anniversary of the Expiration Date,
the Term of Employment shall automatically be extended for an additional
one (1) year period unless Executive or the Corporation notifies the other
in writing at least sixty (60) days prior to the commencement of such
one (1) year period of an intention to terminate this Agreement.
Notwithstanding anything herein to the contrary, the Term of Employment
shall terminate upon Executive's death or Permanent Disability as set
forth in subsection 6(a) hereof or upon the Corporation's termination of
Executive's employment for Cause pursuant to subsection 6(b)
hereof. The Term of Employment shall also terminate upon the
Executive's attainment of age 65, unless the Board of Directors
requests that the Executive extend her service to the Corporation
after age 65. No such extension after age 65 shall exceed one
year, provided that the Term may thereafter be renewed from year to
year by request of the Board of Directors.
4. POSITION AND DUTIES.
(a) Prior to a Change of Control, during the Term of Employment,
the Executive shall serve the Corporation in such capacity as the
Corporation may determine. After a Change of Control, during the Term
of Employment, the
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Executive's position, authority and responsibilities, the type of work
she is asked to perform, and the status and stature of the people with
whom she is asked to work, shall be comparable to that existing with
respect to the Executive as of the date immediately prior to the Change
of Control, and after a Change of Control the Executive's services shall
be performed at the location where the Executive was employed as of the
date immediately prior to the Change of Control, or at such other location
as may be mutually agreed between the Corporation and the Executive.
(b) The Executive agrees to devote her full business time during
normal business hours to the business and affairs of the
Corporation (except as otherwise provided herein) and to use her
best efforts to promote the interests of the Corporation and its
Affiliated Companies and to perform faithfully and efficiently the
responsibilities assigned to her in accordance with the terms of
this Agreement to the extent necessary to discharge such
responsibilities, except for (i) service on corporate, civic or
charitable boards or committees not significantly interfering with
the performance of such responsibilities and (ii) periods of
vacation and sick leave to which she is entitled. It is expressly
understood and agreed that the Executive's continuing service on
any boards and committees with which she shall be connected, as a
member or otherwise, as of the date hereof, or any such service
approved by the Corporation during the Term of Employment, shall
not be deemed to interfere with the performance of the Executive's
services to the Corporation pursuant to this subparagraph 4(b).
5. COMPENSATION AND OTHER CONDITIONS OF EMPLOYMENT.
(a) BASE SALARY. During the Term of Employment, the
Executive shall receive an annual base salary (the "Base Salary"),
in equal installments
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payable bi-weekly or at such other intervals as salary is normally
paid by the Corporation to its employees, at an annual rate established
by the Corporation and any Affiliated Companies as of the date hereof.
Executive's Base Salary for the Corporation's Fiscal Year 2002 is set
forth on Exhibit A, attached hereto and incorporated herein. The Base
Salary shall be reviewed at least once each year and may be increased
at any time and from time to time by action of the Board of Directors
of CPI Corp., any committee thereof or any individual having authority
to take such action, in accordance with the Corporation's regular
practices. Any increase in the Base Salary shall not serve to limit
or reduce any other obligation of the Corporation hereunder, and after
such increase the Base Salary shall not be reduced from such increased
level.
(b) ANNUAL BONUS. After a Change of Control, in addition to
the Base Salary, the Executive shall be awarded for each Fiscal Year
during the Term of Employment an annual bonus (the "Annual Bonus")
(pursuant to any bonus plan or program of the Corporation, any
incentive plan or program of the Corporation, or otherwise) in cash
at least equal to the highest bonus paid or payable to the
Executive in respect of any of the Fiscal Years during the three
Fiscal Years immediately prior to the date of the Change of
Control. Prior to a Change of Control, the amount of the
Executive's Annual Bonus shall be determined in accordance with the
Corporation's regular practice. The bonus plan applicable to
Executive for Fiscal Year 2002 is set forth on Exhibit B, attached
hereto.
(c) OTHER COMPENSATION PLANS. After a Change of Control,
in addition to the Base Salary and Annual Bonus payable as hereinabove
provided, during the Term of Employment, the Executive shall be
entitled to participate
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in all other compensation plans and programs, including, without
limitation, savings plans, stock option plans, and retirement plans
of the Corporation and its Affiliated Companies (collectively, the
"Savings Plans"), on a basis at least equivalent to that provided by
the Corporation and its Affiliated Companies to the Executive under
such programs immediately prior to the date of the Change of Control.
Prior to a Change of Control, the Executive's entitlement to participate
in the Savings Plans shall be determined in accordance with the Corporation's
regular practice. Prior to a Change of Control, nothing herein shall be
construed to prevent the Corporation from amending or altering any such
plans in accordance with the terms thereof. All agreements between the
Corporation and the Executive existing on the date hereof providing for
special pension, retirement or similar benefits are continued by this
Agreement.
(d) BENEFIT PLANS. After a Change of Control, during the
Term of Employment, the Executive, her spouse, or her dependents, as
the case may be, shall be entitled to receive all amounts which she,
her spouse or her dependents are or would have been entitled to
receive as benefits under all other benefit plans of the
Corporation and its Affiliated Companies, including, without
limitation, medical, dental, disability, group life, accidental
death and travel accident insurance plans and programs
(collectively, the "Benefit Plans") on a basis at least as
favorable to the Executive as on the date immediately prior to the
date of the Change of Control. Prior to a Change of Control, the
Executive's and such other persons' entitlement to participate in
the Benefit Plans shall be determined in accordance with the
Corporation's regular practice.
(e) EXPENSEES During the Term of Employment, the Executive
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shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the regular
policies and procedures of the Corporation.
(f) OFFICE AND SUPPORT STAFF. After a Change of Control the
Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and
other assistance, at least equal to those provided to the Executive
as of the date immediately prior to the date of the Change of
Control.
(g) DEATH BENEFITS. In the event of Executive's death after
completion of at least ten (10) Years of Service, unless (1)
Executive's employment with the Corporation was terminated for
Cause or (2) Executive (or her Beneficiary) is entitled to receive
Supplemental Retirement Benefits pursuant to subsection 5(i), the
Corporation shall pay to Executive's Beneficiary an annual death
benefit equal to forty percent (40%) (but not to exceed $150,000)
of the highest annual Base Salary paid to Executive from and after
fiscal year 2002 (as defined in subsection 5(a) hereof), payable in
equal monthly installments, commencing with the month following the
month of Executive's death and ending with the two-hundred fortieth
(240th) month following the month of Executive's death. In the
event that Executive dies before age 65 but has not completed at
least ten (10) Years of Service with the Corporation, death
benefits shall be reduced to an amount equal to the benefits
determined under the preceding sentence multiplied by the Vesting
Percentage applicable to Executive.
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(h) DISABILITY BENEFITS. In the event of Executive's
Permanent Disability prior to attaining age 65 and prior to termination
of employment with the Corporation, unless Executive's employment with
the Corporation was terminated for Cause, the Corporation shall pay
Executive annual disability benefits equal to forty percent (40%) (but
not to exceed $150,000) of the highest annual Base Salary paid to
Executive from and after fiscal year 2002, payable in equal monthly
installments, commencing with the month following the month in which
Executive terminated employment as a result of Permanent Disability
and ending on the earlier of (i) the month in which Executive reaches
age 65 or (ii) the month of her death. In the event that at the time
of Permanent Disability Executive has not completed at least ten (10)
Years of Service, the disability benefits shall be reduced to an amount
equal to the benefits determined under the preceding sentence multiplied
by the Vesting Percentage applicable to Executive. Disability benefits
pursuant to this subsection (h) shall be reduced by any amounts paid to
Executive under the Corporation's long-term disability insurance policy,
but shall not be reduced for any payments received by Executive from
Social Security or from any disability insurance coverage individually
owned by Executive.
(i) SUPPLEMENTAL RETIREMENT BENEFITS.
(1) In the event of Executive's Retirement after completion
of at least ten (10) Years of Service, unless Executive's employment with
the Corporation was terminated for Cause, the Corporation shall pay
Executive retirement benefits for twenty (20) years in an annual amount
equal to forty percent (40%) (but not to exceed $150,000) of the highest
annual Base Salary paid to Executive from and after fiscal year 2001
("Supplemental Retirement Benefits"). In the event of Executive's Retirement
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before completion of ten (10) Years of Service, Corporation shall pay
Executive retirement benefits on the same terms as set forth in the
preceding sentence except that retirement benefits shall be reduced to
an amount equal to Supplemental Retirement Benefits multiplied by the
Vesting Percentage.
(2) Supplemental Retirement Benefits shall be payable in
two hundred forty (240) equal monthly installments commencing with the
month following the later of (i) the month of Executive's Retirement or
(ii) the month during which Executive reaches age sixty-five (65).
If Executive dies prior to the end of the two hundred forty (240)
month period during which Supplemental Retirement Benefits are
payable, Supplemental Retirement Benefits shall be payable during
the remainder of such 240-month period to her Beneficiary.
(3) Notwithstanding anything herein to the contrary, in
the event of Executive's termination of employment with the Corporation
prior to attaining age 65 as a result of Permanent Disability, if Executive
attains age 65 and her employment with the Corporation was not terminated
for Cause, the Corporation shall pay to Executive the Supplemental Retirement
Benefits set forth in this Subsection 5(i) in accordance with Executive's
Vesting Percentage, commencing as of the month following the month in which
Executive attains age 65; provided, however, that any Supplemental Retirement
Benefits paid pursuant to this sentence shall be reduced by any amounts
paid to Executive under the Corporation's long-term disability insurance
policy (but shall not be reduced for any payments received by Executive
from Social Security or from any disability insurance coverage individually
owned by Executive) for the same period.
(j) SURVIVABILITY OF DEATH AND SUPPLEMENTAL RETIREMENT BENEFITS.
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In the event of Executive's Retirement or death, Executive's
entitlement to death benefits pursuant to Subsection 5(g) hereof
and Supplemental Retirement Benefits pursuant to Subsection 5(i)
hereof shall survive the Term of Employment and Executive or her
Beneficiary shall be entitled to such death benefits and
Supplemental Retirement Benefits based on the same terms and
conditions as would have been applicable had her death or
Retirement, as the case may be, occurred during the Term of
Employment.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR PERMANENT DISABILITY. Except for the obligations
of the Corporation set forth in this Subsection 6(a), this Agreement
shall terminate automatically upon the Executive's death or
Permanent Disability. In the event of such termination, the
Corporation shall pay to the Executive's Beneficiary or, in the
event of Permanent Disability, the Executive or her legal
representative, all benefits and Base Salary accrued through the
date of termination, including, without limitation, amounts payable
under any plan referred to in Subsection 5(d) plus any benefits to
which Executive may be entitled pursuant to Subsection 5(g),
Subsection 5(h) or Subsection 5(i) hereof.
(b) CAUSE. The Corporation may terminate the Executive's
employment for Cause. If the Executive's employment is terminated for
Cause, the Corporation shall pay the Executive her full accrued Base
Salary through the effective date of the termination of her
employment (which shall be no earlier than the date of receipt of
notice thereof) at the rate in effect at the time of such
termination, and the Corporation shall have no further obligations
to the Executive under this Agreement.
(c) NOTIFICATION PRIOR TO ONE YEAR EXTENSION. Either
Executive
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or the Corporation may terminate this Agreement by notifying the
other party in writing of an intention to do so at least sixty (60)
days prior to the commencement of a one-year extension period
described in Section 3 hereof.
(d) PAYMENTS FOR INVOLUNTARY TERMINATION WITHOUT CAUSE.
(1) If prior to a Change of Control (i) the Corporation
terminates Executive's employment (other than for Cause pursuant to
subsection 6(b) hereof), or (ii) the Executive's employment terminates
by reason of the Corporation's termination of this Agreement pursuant
to subsection 6 (c) hereof, the Corporation shall pay Executive
following such involuntary termination her full accrued Base
Salary through the date of termination of employment plus an amount
equal to one hundred percent (100%) of Executive's Base Salary for
the fiscal year in which termination occurs, payable in twenty-six
(26) equal bi-weekly installments or at such other intervals as
salary is normally paid by the Corporation to its employees. In
addition, within ninety (90) days after conclusion of the Fiscal
Years in which the Executive's employment is involuntarily
terminated without Cause, the Corporation shall pay the Executive
the Annual Bonus she would have earned for the Fiscal Year, if any,
prorated on the basis of the percentage of the Fiscal Year
preceding such termination of Executive's employment. The payments
pursuant to this Subsection 6(d)(1) and any payments to which
Executive may be entitled pursuant to Subsections 5(g), 5(h), and
5(i) shall be in full discharge of any claims, actions, demands or
damages of every nature and description which Executive might have
or might assert against the Corporation or any Affiliated Company
in connection with or arising from the termination of Executive's
employment or the termination of this Agreement.
(2) If following a Change of Control (i) the Corporation
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terminates Executive's employment (other than for Cause pursuant to
Subsection 6(b) hereof), or (ii) the Executive's employment terminates
by reason of the Corporation's termination of this Agreement pursuant
to subsection 6(c) hereof, the Corporation shall, at the time of such
involuntary termination, make a lump sum cash payment to Executive equal
to 200% of her Base Salary for the Fiscal Year of termination. In
addition to the payment pursuant to this Subsection 6(d)(2) and any
payments to which Executive may be entitled pursuant to Subsections 5(g),
5(h) and 5(i), Executive shall be entitled to all remedies available
under this Agreement or at law in respect of any damages suffered by
Executive as a result of an involuntary termination of employment
without Cause.
(e) Notwithstanding the provisions of subsections 6(c)(i)
and (ii) above, unless the Board of Directors requests that the
Term of Employment be extended after Executive's attaining age 65
in accordance with the provisions of section 3 above, (i) no
severance payment shall be payable to the Executive after age 65;
and (ii) the amount of the severance payable pursuant to subsection
6(d)(i) shall be reduced by an amount equal to one month of Base
Salary for every month of Executive's employment after she attains
age 64. If, however, the Term of Employment is extended at the
request of the Board of Directors after Executive's attaining age
65, the severance payment shall continue to be payable and shall
not be subject to reduction pursuant to subsection 6(d)(ii) to the
extent of such extension.
7. GROSS-UP FOR PARACHUTE TAX.
(a) GENERAL. In the event that following a Change of
Control Executive becomes entitled to any payments (whether pursuant
to this Employment Agreement or any other plan, arrangement or
agreement) from the
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Corporation in the nature of compensation ("Parachute Payments") that
in the opinion of a certified public accounting firm (selected in the
manner set forth in Subsection 7(b)) or that under the provisions of
a notice of assessment from the Internal Revenue Service causes imposition
of the tax under Section 4999 of the Code or any similar tax that may
hereafter be imposed (the "Excise Tax"), the Corporation shall pay Executive,
at the time specified in Subsection 7(d), the Gross-Up Payment (as determined
in accordance with Subsection 7(c)).
(b) SELECTION OF C.P.A. Within fifteen (15) days after any
termination of Executive's employment following a Change of Control,
the majority of the Continuing Directors as of the date immediately
prior to the Change of Control shall select a certified public accounting
firm (the "C.P.A.") to determine the amount, if any, of the Excise Tax
and the amount, if any, of the Gross-Up Payments.
(c) AMOUNT OF GROSS-UP PAYMENTS.
(1) The Gross-Up Payments shall be in an amount such that
the net amount retained by Executive with respect to the Parachute Payments
and Gross-Up Payments, after deduction of any Excise Tax to which the Parachute
Payments may be subject and any federal, state, and local income taxes and
Excise Tax upon the Gross-Up Payments, shall be equal to the gross amount of
the Parachute Payments.
(2) For purposes of determining the amount of the Gross-Up
Payments, Executive shall be deemed to pay federal income taxes at the
applicable rate of federal income taxation for the calendar year in which
the Gross-Up Payment is to be made and state and local income taxes at the
applicable rate of taxation for the
calendar year in which the Gross-Up
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Payment is to be made.
(3) In the event that the Excise Tax is subsequently determined
to exceed the amount taken into account at the time the Gross-Up Payment is
made pursuant to Subsection 7(d)(1) hereof (including any excess attributable
to any Parachute Payments the existence or amount of which could not be
accurately determined at the time of the Gross-Up Payment), the Corporation
shall make an additional Gross-Up Payment in respect of such excess (plus
any interest and addition to tax payable with respect to such excess)
within fifteen (15) days after the amount of such excess is determined by
the C.P.A. or by the Internal Revenue Service (the "IRS") in a
notice of assessment.
(d) TIMING OF GROSS-UP PAYMENTS. Gross-Up Payments other than
Gross-Up Payments pursuant to Subsection 7(c)(3) shall be paid not later
than forty-five (45) days following payment of any Parachute
Payments to which the Gross-Up Payments are attributable; provided,
however, that if the amount of such Gross-Up Payment or portion
thereof cannot be finally determined on or before such day, the
Corporation shall pay to Executive on such day an estimate, as
determined in good faith by the Corporation, of the minimum amount
of such payments and shall pay the remainder of such payments
(together with interest at the applicable federal rate provided in
Section l274(d) of the Code) as soon as the amount thereof can be
determined by the C.P.A., but in no event later than forty-five
(45) days after payment of such Parachute Payments.
(e) CORPORATION'S RIGHT TO DESIGNATE TAX REPRESENTATIVE;
ASSIGNMENT OF REFUND PROCEEDS. If the IRS proposes an assessment
of the Excise Tax against Executive or proposes an additional
assessment of Excise
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Tax in excess of the amount previously reported by Executive:
(1) Executive shall within five (5) days after receipt
from the IRS of notice of the proposed Excise Tax assessment notify the
Corporation in writing and furnish the Corporation with copies of
all correspondence from the IRS relating to the proposed Excise Tax
assessment.
(2) The Corporation shall be authorized to designate an
attorney and/or accountant (the "Tax Representative") to serve as
Executive's exclusive representative with respect to all
proceedings with the IRS relating to the proposed Excise Tax
assessment, including but not limited to negotiating a settlement
or compromise of the proposed Excise Tax assessment, filing a claim
for refund with respect thereto, and seeking judicial review of any
disallowance of a claim for refund. Executive hereby agrees to
execute an appropriate power of attorney authorizing the Tax
Representative to represent Executive with respect to the Excise
Taxes. Executive further agrees to take any other appropriate
actions reasonably requested by the Tax Representative in
connection therewith; provided, however, that the Corporation shall
reimburse Executive for any expenses incurred by Executive as a
result of compliance with such requests.
(3) If the Tax Representative files a claim for refund of
Excise Taxes with respect to which the Corporation has made a Gross-Up
Payment and such refund claim is allowed by the IRS or by the final
judgment of a court of competent jurisdiction, Executive shall
endorse the refund check payable to the Corporation and shall send
the refund check to the Corporation not later than five (5) days
after receipt from the IRS.
(4) If the Corporation designates a Tax Representative,
the Corporation shall pay all of his or her professional fees and
expenses and
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hold Executive harmless from any claims in connection
therewith. The Tax Representative shall keep Executive timely
informed of all significant developments in the Excise Tax matter
and shall send to Executive copies of all correspondence relating
thereto.
(5) Notwithstanding anything herein to the contrary,
if the Corporation is in material breach of any of its obligations
pursuant to this Agreement, the Corporation's rights pursuant to
this Subsection 7(e) shall be extinguished and Executive shall have
the right to revoke any power of attorney executed pursuant to this
Subsection 7(e).
8. NO OBLIGATION TO MITIGATE DAMAGES. The Executive shall not
be obligated to mitigate any damages by seeking other employment or
otherwise, and no amount payable hereunder and no benefit or
service credit for benefits shall be reduced in the event that the
Executive shall accept alternative employment.
9. BENEFITS PAYABLE ONLY FROM CORPORATE ASSETS.
(a) NO TRUST. Nothing contained in this Agreement, and no
action taken pursuant to its provisions by either party hereto shall
create, or be construed to create, a trust of any kind, or a
fiduciary relationship between the Corporation and the Executive or
her Beneficiary.
(b) EXECUTIVE'S STATUS AS UNSECURED GENERAL CREDITOR. The
payment of any benefits hereunder to the Executive or her Beneficiary
shall be made from assets which shall continue, for all purposes, to
be a part of the general assets of the Corporation; no person shall
have or acquire any interest in such assets by virtue of the
provisions of this Agreement. To the extent that the Executive or
her Beneficiary acquires a right to receive payments from the
Corporation under the provisions hereof, such right shall be no
greater
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than the right of any unsecured general creditor of the
Corporation.
(c) RECOVERY OF COST OF PROVIDING BENEFITS. In the event
that, in its discretion, the Corporation purchases an insurance policy
insuring the life of the Executive to enable the Corporation to
recover, in whole or in part, the cost of providing any benefits
hereunder, neither the Executive nor her Beneficiary under this
Agreement shall have or acquire any rights whatsoever therein.
The Corporation shall be the sole owner and beneficiary of any such
policy and, as such, shall possess and may exercise all incidents
of ownership therein.
10. DETERMINATION OF BENEFITS AND CLAIMS PROCEDURE. The Corporation
shall make all determinations as to rights to benefits under this Agreement.
Subject to and in compliance with the specific procedures contained in the
applicable regulations promulgated under the Employee Retirement Income
Security Act of 1974, as amended: (i) any decision by the Corporation
denying a claim for benefits under this Agreement by the Executive or
her Beneficiary shall be stated in writing by the Corporation and delivered
or mailed to the claimant; (ii) each such notice shall set forth the
specific reasons for the denial, written to the best of the
Corporation's ability in a manner that may be understood without
legal or actuarial counsel; and (iii) the Corporation shall afford
a reasonable opportunity to the claimant whose claim for benefits
has been denied for a review of the decision denying such claim.
11. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation
in any benefit, bonus, incentive or other plan or program provided
by the Corporation or any Affiliated Companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise
affect such rights as the Executive may
20
have under any other agreements with the Corporation or any Affiliated
Companies. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the
Corporation or any Affiliated Companies shall be payable in
accordance with the terms of such plan or program.
12. FULL SETTLEMENT. After a Change of Control, the Corporation's
obligation to make the payments provided for herein and otherwise to
perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the
Corporation may have against the Executive or others. Unless it is
finally determined by a court of competent jurisdiction after all
available appeals that the Corporation has validly terminated the
Executive's employment for Cause, the Corporation agrees to pay, to
the full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Corporation or others of
the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance
thereof, plus, in each case, interest compounded quarterly, on the
total unpaid amount determined be payable hereunder, such interest
to be calculated on the basis of the prime commercial lending rate
announced by Firstar Bank, N.A. in effect from time to time, for
the period commencing on the date of such contest and ending on
the date on which the Corporation shall pay such amount.
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13. COVENANTS.
(a) NON-COMPETITION.
(1) Executive recognizes that during the course of
Executive's employment with the Corporation, Executive has been and
will be instructed about and become acquainted with confidential
information of the Corporation, including, without limitation,
customer lists, methods of sales, the existence and contents and
terms of this Agreement, methods of sales procurement, sales
procurement techniques, sales procedures and equipment/supply
information, equipment and supply acquisition procedures and
processes and sources, customer evaluation procedures, customer
maintenance and supply maintenance procedures and corresponding
information relating to persons, firms and corporations which are
or may become customers of the Corporation and, further, companies
from which the Corporation obtains various products and supplies
for sale, resale and distribution to customers of the Corporation.
This confidential information further includes, but is not limited
to, customer identity, supplier identity and terms, purchase terms,
sales techniques, purchase conditions and rates, customer needs,
billing procedures and processes, contacts and customer
information. Further, Executive agrees and acknowledges that the
development and assemblage and maintenance of the customer base of
the Corporation has taken extraordinary time, money, resources,
training, and effort by the Corporation and its employees.
(2) Executive agrees that she will not during the
Term of Employment and for a period of two (2) years following cessation of
her employment at the Corporation ("Restricted Period"), for any
cause or reason, directly or indirectly:
22
(A) engage in any business in competition with the
Corporation and its Affiliates or supply and sell to present customers,
former customers and prospects of the Corporation and its Affiliates; or
(B) own, manage, operate, control, advise, be employed
by, consult, or materially participate in, or be materially involved in
any manner with the ownership, management, operation or control of,
individually or through any other entity or device, any business that
competes with the business then conducted by the Corporation or any
Affiliate; provided, however, that mere ownership as an investor of
not more than five percent (5%) of the securities of a corporation or
other business enterprise shall not in and of itself
be deemed to violate this Section 13(a)(2)(B).
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(1) Executive will not, except as authorized by the
Corporation in writing, during or at any time after the termination
of Executive's employment with the Corporation, directly or indirectly,
use for herself or others, or disclose, communicate, divulge, furnish
to, or convey to any other person, firm, or corporation, any secret or
confidential information, knowledge or data of the Corporation or
that of third parties obtained by Executive during the period of
her employment with the Corporation. Such information, knowledge
or data includes, without limitation, the following:
(A) Secret or confidential matters of a technical
nature such as, but not limited to, methods, know-how, formulations,
compositions, processes, discoveries, machines, inventions, computer
programs, and similar items or research projects involving such items,
(B) Secret or confidential matters of a business
23
nature such as, but not limited to, marketing policies or strategies,
information about costs, price lists, purchasing and purchasing policies,
profits, market, sales or lists of customers, customer history information,
and
(C) Secret or confidential matters pertaining to
future developments such as, but not limited to, research and
development or future marketing or merchandising.
(2) Executive, upon termination of her employment with
the Corporation, or at any other time upon the Corporation's request,
shall deliver promptly to the Corporation all manuals, letters,
notes, notebooks, reports, formulations, computer programs and
similar items, memoranda, lists of customers, customer history
information and all other materials and copies thereof relating in
any way to the Corporation's business and in any way obtained by
Executive during the term of employment with the Corporation which
are in her possession or under her control and Executive will not
make or retain any copies of any of the foregoing and will so
represent to the Corporation upon termination of her employment.
(c) INDUCEMENT.
(1) Executive agrees that during the Term of Employment
and during the Restricted Period, Executive shall not use any confidential
information for the purposes of inducing or attempting to induce any
present, former, or prospective customer of the Corporation or its
Affiliates to become a customer of Executive or any person,
firm, or corporation, or business association with which Executive
is affiliated in any capacity with respect to the markets supplied
by the Corporation or its Affiliates.
(2) Executive agrees that during the Term of Employment
24
and during the Restricted Period, Executive shall not directly or indirectly
solicit for employment or employ any of the Corporation's employees to work
for Executive or any business association with which/whom Executive is
affiliated, or to work for any other company in the markets supplied by
the Corporation or its Affiliates.
(d) INTEREST OF PARTIES. Executive agrees that the duration of
the limitations set forth in this Section 13 are reasonable under
the circumstances, considering Executive's position with the
Corporation and other relevant factors, and that this will not
constitute a serious handicap to Executive in securing future
employment.
(e) DISCLOSURE TO CORPORATION. Executive shall promptly
communicate and disclose to the Corporation all information,
observations and data obtained by Executive in the course of
Executive's employment. All written materials, records and
documents made by Executive or coming into Executive's possession
during the Term of Employment concerning any inventions, products,
processes or equipment, manufactured, used, developed, investigated
or considered by the Corporation or any Affiliated Companies shall
be the property of the Corporation, and upon termination of the
Term of Employment, or upon request of the Corporation during the
Term of Employment, Executive shall promptly deliver the same to
the Corporation. Executive agrees to render to the Corporation
such reports of the activities of the business undertaken by
Executive or conducted under Executive's direction during the Term
of Employment as the Corporation may reasonably request.
(f) INVENTIONS.
(1) Executive shall promptly communicate and disclose
in writing to the Corporation all those inventions and developments
whether
25
patentable or not, as well as patents and patent applications
(hereinafter collectively called "Inventions"), made, conceived,
developed or purchased by Executive, or under which Executive
acquires the right to grant licenses or to become licensed, alone
or jointly with others, during the Term of Employment, which have
arisen or may arise out of Executive's employment, or relate to any
matters pertaining to, applicable to, or useful in connection with,
the business or affairs of the Corporation or any Affiliated
Companies. All of Executive's right, title and interest in, to and
under all such inventions, licenses and rights to grant licenses
shall be the sole property of the Corporation. Any such inventions
disclosed to anyone by Executive within one (1) year after the
termination of the Term of Employment for any cause whatsoever
shall be deemed to have been made or conceived by Executive during
the Term of Employment.
(2) As to all such inventions, Executive shall, upon
request of the Corporation, during the Term of Employment or thereafter:
(A) Execute all documents which the Corporation shall
deem necessary or proper to enable it to establish title to such inventions,
or other rights, and to enable it to file and prosecute applications for
letters patent of the United States and any foreign country; and
(B) Do all things (including the giving of evidence in
suits and other proceedings) which the Corporation shall deem necessary or
proper to obtain, maintain or to assert patents for any and all such
inventions or to assert its rights in any inventions not
patented.
All expenses incident to any action required by the Corporation or
taken on its behalf pursuant to the provisions of this paragraph
shall be borne by
26
the Corporation including without limitation a reasonable payment for
Executive's time and expenses involved in case she is not then in its employ.
(g) LITIGATION. Executive agrees that during the Term of
Employment or thereafter, Executive shall do all things, including the
giving of evidence in suits and other proceedings, which the Corporation
shall deem necessary or proper to obtain, maintain or assert rights
accruing to the Corporation during the Term of Employment and in connection
with which Executive has knowledge, information or expertise. All reasonable
expenses incurred by Executive during the Term of Employment or thereafter
in fulfilling the duties set forth in this Section, shall be reimbursed by
the Corporation to the full extent legally appropriate including, without
limitation, a reasonable payment for Executive's time in the event this
Agreement has terminated prior to the time Executive renders such
assistance, advice and counsel.
14. EQUITY. The parties hereto agree that the services to be
rendered by Executive are special, unique and of an extraordinary
character. In the event of the breach by Executive of any of the
provisions of this Agreement, the Corporation, in addition and as
a supplement to such other rights and remedies as may exist in its
favor, may apply to any court of law or equity having jurisdiction
to enforce the specific performance of this Agreement, and/or may
apply for injunctive relief against any act which would violate any
of the provisions of this Agreement.
15. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter hereof.
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16. NO ASSIGNMENT.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Corporation shall not be assignable by
the Executive other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives and
Beneficiary.
(b) This Agreement shall inure to the benefit of and be binding
upon the Corporation and its successors. The Corporation shall require
any successor to all or substantially all of the business and/or assets
of the Corporation, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock, or otherwise, by an agreement in
form and substance satisfactory to the Executive, expressly to assume
and agree to perform this Agreement in the same manner and to the same
extent as the Corporation would be required to perform if no such
succession had taken place.
17. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provision or clause were omitted.
18. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without reference to
principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified other than
by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) In the event that litigation is required to enforce any
28
provision of this Agreement, subject to the provisions of Section
12 hereof, the prevailing party shall be entitled to reasonable
attorneys fees.
(c) All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or
by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
IF TO THE EXECUTIVE:
-------------------
Xxxxx X. Deal
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxx 00000
IF TO THE CORPORATION:
---------------------
Consumer Programs Incorporated
0000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: J. Xxxxx Xxxxxxx, Chairman and CEO
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(d) This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof.
(e) The Corporation may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or
regulation.
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
in duplicate, all as of the day and year first above written.
CONSUMER PROGRAMS INCORPORATED
By: /s/ J. Xxxxx Xxxxxxx
----------------------------------
J. Xxxxx Xxxxxxx, Chairman
and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxx X. Deal
---------------------------------
Xxxxx X. Deal
30
