Exhibit 99(e)(4)
EXECUTIVE
EMPLOYMENT AGREEMENT
This agreement (the "Agreement") made and entered into this 29th day of
November, 2000 by and between Xxxxxx Worldwide, Inc., a Delaware corporation
("Xxxxxx") and C. Xxxxx Xxxxxx, an individual resident of Gwinnett County,
Georgia (the "Executive"), residing at 0000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx
00000.
WITNESSETH THAT:
WHEREAS, the Executive is currently employed by Lanier as President and
Chief Operating Officer ("COO") and is party to an employment agreement between
the Executive and Xxxxxx, dated as of November 8, 1999 and an Executive
Severance Agreement between the Executive and Xxxxxx, dated as of October 1,
1999 (together, the "Executive Agreements"); and
WHEREAS, LW Acquisition Corp., a subsidiary of Ricoh Corporation
("Ricoh"), will acquire and be merged into Xxxxxx pursuant to the Agreement and
Plan of Merger, dated November 29, 2000 among Xxxxxx, Ricoh Corporation and LW
Acquisition Corp (the "Merger Agreement"), with Xxxxxx continuing thereafter as
a wholly-owned subsidiary of Ricoh; and
WHEREAS, the Executive has been rendering valuable services on behalf
of Xxxxxx, and it is the desire of Lanier to retain the Executive's continued
services and loyalty in the future by entering into this Agreement; and
WHEREAS, Xxxxxx and the Executive desire to enter into this Agreement
in order to reduce the rights and obligations of the parties to writing;
NOW, THEREFORE, Xxxxxx and the Executive in consideration of the
premises and of the mutual and reciprocal covenants and agreements hereinafter
contained, do hereby contract and agree as follows, to-wit:
I. EMPLOYMENT
Xxxxxx hereby agrees to continue to employ the Executive and the
Executive hereby agrees to continue in the employment of Xxxxxx and agrees to
perform such duties as may be determined and assigned to him from time to time
by the Chief Executive Officer or the Board of Directors (the "Board")
consistent with the position of President and COO. During the Term (as defined
in section II below), the Executive shall not, without the written approval of
the Board, directly or indirectly, accept employment or compensation from, or
perform services of any nature for any business enterprise other than Xxxxxx or
separate entities owned or controlled by Xxxxxx. Notwithstanding the foregoing,
the Executive shall be permitted, subject to the prior written approval of the
Board, to serve as a director on the boards of directors of other corporations
and retain any compensation paid therefor. Upon the Merger (as hereinafter
defined), this Agreement will supersede any and all existing agreements, oral or
written, including,
without limitation, the Executive Agreements, between Xxxxxx and the Executive
with regard to the matters set forth herein, and the Executive hereby waives his
rights to any payments or benefits under the terms of those agreements.
II. TERM
This Agreement is contingent upon and shall become effective upon the
consummation of the merger (the "Merger") of LW Acquisition Corp. with and into
Xxxxxx pursuant to the Merger Agreement. Prior to the consummation of the
Merger, the Executive Agreements shall remain in full force and effect and shall
continue to govern the terms of the Executive's employment with Lanier. In the
event the Merger Agreement is terminated, or the Merger is not consummated prior
to March 31, 2001, this Agreement shall be void and the terms hereof shall be of
no force or effect.
Unless earlier terminated as provided herein, the Executive's
employment under this Agreement shall be for a period commencing on the date of
the Merger (the "Effective Date") and ending on the second anniversary of the
Effective Date (the "Term"); PROVIDED, THAT, the Term shall be automatically
extended for successive one-year periods thereafter, unless, no later than 90
days prior to the expiration of the initial two-year period or any one-year
renewal period, either party hereto shall provide to the other party hereto
written notice of his or its desire not to extend the Term.
III. COMPENSATION
A. SALARY. In consideration of all services to be rendered by the
Executive in any capacity hereunder for Xxxxxx during the term of this
Agreement, and in consideration of the covenants and agreements of the Executive
herein contained, Xxxxxx agrees to pay the Executive during the Term current
compensation of $425,000 per year paid in substantially equal biweekly payments,
the amount of said current compensation being subject to adjustment from time to
time pursuant to the provisions of this Section III-X. Xxxxxx, when authorized
by the Compensation Committee of its Board, may from time to time, reflect
increases in Executive's current compensation pursuant to provisions of this
Section III-A by entering any such change upon the Schedule of Current
Compensation, attached hereto as Exhibit "A" and made a part hereof. If a change
in current compensation is entered upon said schedule and is duly signed by the
proper officers of Xxxxxx and by the Executive, said entry shall constitute an
amendment of this Agreement as of the date of said entry and shall supersede the
current compensation provided for in this Section III-A and any other change or
changes in such current compensation previously entered on said Schedule. All
compensation paid to the Executive shall be subject to withholding and other
employment taxes imposed by applicable law.
B. RETENTION BONUS. Xxxxxx shall pay the Executive a retention bonus in
the amount of $200,000 on each of the first and second anniversaries of the
Effective Date if the Executive remains in the employ of Lanier on the day prior
to such anniversaries.
C. BONUS. With respect to each calendar year during the Term, the
Executive shall be eligible to earn an annual bonus award of up to $350,000. The
amount of the
2
bonus, if any, awarded to the Executive in any year, shall be based upon the
achievement of an annual target established and reasonably determined in good
faith by the Board in its sole discretion. In addition, the Executive shall be
eligible to earn an incentive bonus (together with the annual bonus, the
"Bonuses") of up to $120,000 per year based on the achievement of long-term
targets established and reasonably determined in good faith by the Board in its
sole discretion.
D. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Executive shall be
permitted during the Term, to the extent eligible, to participate in any group
life, medical, disability insurance plan, health program, dental program,
vacation benefit or other fringe benefit plan of Xxxxxx, which participation
shall be on a basis that is at least equivalent to that which is then made
available to other senior executives of Xxxxxx.
E. CLUB MEMBERSHIP. Xxxxxx shall pay or reimburse the Executive for
annual membership fees incurred or paid by the Executive for one social or
dining club membership selected by the Executive and approved by the Board and
Chief Executive Officer.
F. FINANCIAL PLANNING. Xxxxxx shall pay or reimburse the Executive for
expenses not to exceed $5,000.00 incurred or paid by the Executive for financial
planning and/or tax preparation services.
G. ANNUAL PHYSICAL EXAMINATION. Xxxxxx shall pay or reimburse the
Executive for expenses incurred or paid by the Executive for an annual physical
examination.
H. CONTRIBUTION TO SERP PLANS. Within thirty days following the
consummation of the Tender Offer (within the meaning of Section 2.01 of the
Merger Agreement), Ricoh shall fully fund the trust agreement created pursuant
to the Xxxxxx Supplemental Executive Retirement Plan between Xxxxxx and SunTrust
Bank, dated September 1, 2000 and the trust agreement created pursuant to the
Xxxxxx Supplemental Executive retirement Savings Plan between Xxxxxx and X. Xxxx
Price Trust Company, dated November 20, 2000 (collectively, the "Xxxxxx SERP
Plans").
IV. TERMINATION OF EMPLOYMENT
A. TERMINATION FOR "CAUSE". If the Executive's employment with Xxxxxx
is terminated by Lanier for "Cause," said termination shall become effective
upon the date Xxxxxx gives the Executive written notice thereof and any and all
amounts of compensation which may be due thereafter pursuant to Section III of
this Agreement shall be immediately forfeited. "Cause" means as determined by
the Board in good faith that: (1) a material breach by the Executive of the
duties and responsibilities of the Executive or any written policies or
directives of Xxxxxx (other than as a result of incapacity due to physical or
mental illness) which is (i) willful or involves gross negligence, and (ii) not
remedied within 15 days after receipt of written notice from Xxxxxx which
specifically identifies the manner in which such breach has occurred; (2)
3
the material breach of any of the terms and conditions of this Agreement not
remedied within 15 days after receipt of written notice from Xxxxxx which
specifically identifies the manner in which such breach has occurred (3) the
Executive commits any felony or any misdemeanor involving willful misconduct;
(4) the Executive engages in a fraudulent or dishonest act that damages or
adversely prejudices Xxxxxx or any of its affiliates or engages in other conduct
or activities damaging to the property, business or reputation of Lanier or any
of its affiliates; (5) the Executive engages in habitual insobriety or substance
abuse that materially damages or adversely prejudices Xxxxxx or any of its
affiliates; or (6) the Executive diverts any business opportunity from Xxxxxx or
any of its affiliates (except with prior written consent of the Board). Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of Xxxxxx'x counsel shall be
conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of Xxxxxx. Cause shall not exist unless and
until Xxxxxx has delivered to the Executive a copy of a resolution duly adopted
by three-quarters (3/4) of the entire Board, at a meeting of the Board called
and held for such purpose, finding that in the good faith opinion of the Board
an event set forth in clauses (1) through (6) has occurred and specifying the
particulars thereof in detail and the Executive failed to remedy such breach set
forth in the resolution within 15 days after receipt of such resolution by the
Executive, if applicable. Xxxxxx must notify the Executive of any event
constituting Cause within 90 days following Xxxxxx'x knowledge of its existence
or such event shall not constitute Cause under this Agreement.
In the event of a termination pursuant to this Section IV-A (including
for this purpose, a termination by the Executive without "Good Reason"), Xxxxxx
shall pay to the Executive on the date of termination, a lump-sum cash amount
equal to the sum of (1) the Executive's Base Salary through the date of
termination, to the extent not theretofore paid, (2) any benefits or awards
which have been earned or become payable pursuant to the terms of any
compensation plan but which have not yet been paid to the Executive, and (3) any
compensation previously deferred by the Executive other than pursuant to a
tax-qualified plan (together with any interest and earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid.
B. TERMINATION WITHOUT "CAUSE". Xxxxxx may terminate the Executive's
employment hereunder at any time without "Cause" by giving at least 30 days'
written notice to the Executive of its intention to do so. In the event such
notice of termination is given, said 30 day period shall be counted as a period
of regular employment for all purposes under this Agreement unless expressly
provided otherwise, including without limitation the payment of compensation
pursuant to Section III-A above. In the event of a termination pursuant to this
Section IV-B (including for this purpose, a termination due to the expiration of
the Term), Lanier shall pay to the Executive on the date of termination, a
lump-sum cash amount equal to the sum of:
1) The Executive' s base salary through the date of termination,
to the extent not theretofore paid;
4
2) A pro rata portion of the Executive's annual target bonus
determined by multiplying such target bonus by a fraction, the
numerator of which is the number of days in the fiscal year in
which the date of termination occurs through the date of
termination and the denominator of which is three hundred
sixty-five (365);
3) Any compensation previously deferred by the Executive other
than pursuant to a tax-qualified plan (together with any
interest and earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid;
4) A severance payment in the amount of $1,700,000 plus the
amount of all retention bonuses provided for under Section
III-B for the remainder of the initial two-year term of this
Agreement that have not been previously paid to the Executive
under the terms of this Agreement;
If the Executive is terminated without Cause, Lanier shall
continue to provide, for a period of two years following the date of termination
but in no event after the date of the Executive's attainment of age 65, the
Executive (and his dependents, if applicable) with the same level of medical,
dental, life insurance and any other similar benefits in place as of the date of
termination upon substantially the same terms and conditions (including
contributions required by the Executive for such benefits) as existed
immediately prior to the Executive's date of termination; PROVIDED, THAT, if the
Executive cannot continue to participate in Xxxxxx'x plans providing such
benefits, Xxxxxx shall otherwise provide such benefits on the same after-tax
basis as if continued participation had been permitted or shall pay the
Executive a lump sum in cash equal to the then present value of such benefits.
Notwithstanding the foregoing, in the event the Executive becomes employed with
another employer and becomes eligible to receive welfare benefits from such
employer, the welfare benefits described herein shall be secondary to the
benefits provided by the other employer during the period of the Executive's
eligibility, but only to the extent that Xxxxxx reimburses the Executive for any
increased cost and provides any additional benefits necessary to give the
Executive the benefits provided hereunder.
The amounts paid pursuant to this Section IV-A shall be in lieu
of any other amount of severance relating to salary or bonus continuation to be
received by the Executive upon termination of employment of the Executive under
any severance plan or policy of Xxxxxx other than amounts to which the Executive
is entitled pursuant to the Xxxxxx SERP Plans and any tax-qualified plans with
respect to which the Executive shall be entitled to be paid.
C. TERMINATION BY THE EXECUTIVE FOR "GOOD REASON". "Good Reason" means,
without the Executive's express written consent, the occurrence of any of the
following events:
1) the assignment to the Executive of any additional duties or
responsibilities inconsistent in any material adverse respect
with the
5
Executive's position as President and COO or a material adverse
change in the Executive' s reporting responsibilities or titles
(other than a change which occurs solely as a result of
Xxxxxx'x becoming a wholly-owned subsidiary of another business
entity);
2) a reduction in the Executive' s compensation as provided in
Section III hereof or the taking of any action by Xxxxxx that
materially limits the Executive's opportunity to earn the
Bonuses specified in Section III-C hereof;
3) any requirement that the Executive be based anywhere more
than 50 miles from the facility where the Executive is located
as of the Effective Date or travel on Xxxxxx business to an
extent substantially greater than immediately prior to the
Effective Date; PROVIDED, THAT, the Executive acknowledges that
he may be required to make an occasional trip to Japan during
the Term;
4) the failure to (i) continue in effect any employee benefit
plan or compensation plan in which the Executive is
participating, unless the Executive is permitted to participate
in the most favorable employee benefit plans, practices,
programs and policies in effect for all other senior
executives, or the taking of any action by Xxxxxx which would
adversely affect the Executive' s participation in or reduce
the Executive' s benefits under any such plan except such
action or reduction as is uniformly applied to all other senior
executives, (ii) provide the Executive and the Executive's
dependents with welfare benefits in accordance with the most
favorable plans, practices, programs and policies or to provide
substantially comparable benefits at a substantially comparable
cost to the Executive, unless the Executive and the Executive's
dependents are provided with the most favorable welfare benefit
plans, practices, programs and policies in effect for all other
senior executives, (iii) provide fringe benefits in accordance
with the most favorable plans, practices, programs and, unless
the Executive is provided with the most favorable fringe
benefit plans, practices, programs and policies in effect for
all other senior executives, or (iv) provide the Executive with
paid vacation in accordance with the most favorable plans,
policies, programs and practices;
5) the failure of Xxxxxx to obtain the assumption of this
Agreement from any successor; or
6) any purported termination of the Executive's employment
otherwise than as expressly permitted hereby.
Any isolated action taken in good faith and which is remedied by Lanier within
fifteen days after receipt of notice thereof given by the Executive shall not
constitute Good Reason. The Executive must provide notice of termination of
employment within 90
6
days of the Executive's knowledge of an event constituting Good Reason or such
event shall not constitute Good Reason under this Agreement.
A termination for Good Reason pursuant to this Section IV-C shall be treated for
all purposes as a termination without Cause pursuant to Section IV-B and the
provisions of Section IV-B shall apply to such termination.
D. DEATH OR TOTAL DISABILITY OF THE EXECUTIVE. Upon the death or total
disability of the Executive during the Term, this Agreement shall terminate, and
the Executive, or his legal or personal representative or his designated
beneficiary, or his estate in the absence of an effective beneficiary
designation, as the case may be, shall receive the then current monthly portion
of his annual current compensation provided for in Section III-A above prorated
through the date of the Executive's death or total disability. In addition, in
the event this Agreement is terminated under this Section IV-D, Xxxxxx shall,
within 30 days of the date of termination, pay the Severance Payment to the
Executive or the Executive's designated beneficiary (as applicable), or his
estate in the absence of an effective beneficiary designation.
E. CERTAIN ADDITIONAL PAYMENTS BY XXXXXX.
1) If Xxxxxx or Xxxxxx'x accountants determine that the
payments called for under this Agreement or any other payments
or benefits made available to the Executive by Lanier or an
affiliate of Xxxxxx (collectively or individually, the
"Payments") will result in the Executive being subject to an
excise tax ("Excise Tax") under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), or if an Excise
Tax is assessed against the Executive as a result of such
payments or other benefits, Xxxxxx shall make a Gross-Up
Payment to or on behalf of the Executive as and when such
determination(s) and assessment(s), as appropriate, are made,
subject to the conditions of this Section IV-E(1). A "Gross-Up
Payment" shall mean a payment to or on behalf of the Executive
that shall be sufficient to pay (1) any Excise Tax in full, (2)
any federal, state and local income tax and Social Security or
other employment tax on the payment made to pay such Excise Tax
as well as any additional Excise Tax on the Gross-Up Payment,
and (3) any interest and penalties assessed by the Internal
Revenue Service on the Executive. Any determination under this
Section IV-E(1) by Xxxxxx or Xxxxxx'x accountants shall be made
in accordance with Section 280G of the Code and any applicable
related regulations (whether proposed, temporary or final) and
any related Internal Revenue Service rulings and any related
case law. The Executive shall take such action (other than
waiving the Executive's right to any payments or benefits) as
Xxxxxx reasonably requests under the circumstances to mitigate
or challenge such tax. If Xxxxxx reasonably requests that the
Executive take action to mitigate or challenge, or to mitigate
and challenge, any such tax or assessment and the Executive
complies with such request, Xxxxxx shall provide the Executive
with such information and such expert advice and assistance
from Xxxxxx'x
7
accountants, lawyers and other advisors as the Executive may
reasonably request, and Xxxxxx shall pay for all expenses
incurred in effecting such compliance and any related fines,
penalties, interest and other assessments.
2) Subject to the provisions of Section IV-E(1), all
determinations required to be made under this Section IV-E,
including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a
public accounting firm that is agreed upon by Xxxxxx and the
Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to Xxxxxx and the Executive within
30 business days of the receipt of notice from Xxxxxx or the
Executive that there has been a payment that could trigger a
Gross-Up Payment or such earlier time as is requested by Lanier
(collectively, the "Determination"). All fees and expenses of
the Accounting Firm shall be born solely by Lanier and Lanier
shall enter into any agreement requested by the Accounting Firm
in connection with the performance of the services hereunder.
The Gross-Up Payment under this Section IV-E with respect to
any Payments shall be made no later than 60 days following such
payments. If the Accounting Firm determines that no Excise Tax
is payable by the Executive, it shall furnish the Executive
with a written opinion to such effect, and to the effect that
failure to report the Excise Tax, if any, on the Executive's
applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. The
Determination by the Accounting Firm shall be binding upon
Xxxxxx and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the
Determination, it is possible that Gross-Up Payments which will
not have been made by Lanier should have been made
("Underpayment") or Gross-Up Payments are made by Xxxxxx which
should not have been made ("Overpayment"), consistent with the
calculations required to be made hereunder. In the event that
the Executive thereafter is required to make payment of any
additional Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such
Underpayment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) shall be promptly paid by
Lanier to or for the benefit of the Executive. In the event the
amount of the Gross-Up Payment exceeds the amount necessary to
reimburse the Executive for his Excise Tax, the Accounting Firm
shall determine the amount of the Overpayment that has been
made and any such Overpayment (together with interest at the
rate provided in Section 1274(b)(2) of the Code) shall be
promptly paid by the Executive to or for the benefit of Xxxxxx.
The Executive shall cooperate, to the extent the Executive's
expenses are reimbursed by Xxxxxx, with any reasonable requests
by Xxxxxx in connection with any contests or disputes with the
Internal Revenue Service in connection with the Excise Tax.
8
F. RELEASE. Notwithstanding any other provision of this Agreement to
the contrary, the Executive acknowledges and agrees that any and all payments to
which the Executive is entitled under this Section IV are conditioned upon and
subject to the Executive's execution of a general waiver and release, in such
reasonable and customary form as shall be prepared by Xxxxxx, of all claims the
Executive may have against Lanier, except as to matters covered by provisions of
this Agreement which expressly survive the termination of this Agreement.
V. RESTRICTIVE COVENANTS
For and in consideration of Xxxxxx'x employment of the Executive
pursuant to Section I, and of Xxxxxx'x entering into this Agreement and the
payment of compensation and other benefits set forth herein, the Executive
hereby enters into the following restrictive covenants:
A. NONCOMPETE/NONSOLICITATION. In consideration of the continued
employment of the Executive by Lanier, of the premises and the mutual promises
and covenants contained in the Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Executive agrees that during the Term of his employment with Xxxxxx and for a
period of two years after termination, whether such termination is at the
instance of Lanier or the Executive, the Executive will not, directly or
indirectly, on the Executive's own behalf or for others, (i) manage, operate,
join, control, or participate in, as an officer, director, employee, owner,
partner, consultant, or otherwise, any business entity that is engaged in a
business that is competitive with the business of Xxxxxx, or (ii) recruit or
hire, or induce, influence, or seek to induce or influence, any person engaged
as an employee, representative, agent, independent contractor or otherwise by
Lanier, to terminate his or her relationship with Xxxxxx. Xxxxxx does business
throughout the world and this provision shall have worldwide application.
Nothing herein contained shall prohibit the Executive from engaging in any
activity or business that is not competitive with the business conducted by
Xxxxxx during the Executive's employment with Lanier or from investing his funds
in securities of an issuer if the securities of such issuer are listed for
trading on a national securities exchange or are traded in the over-the-counter
market and the Executive's holdings therein represent less than one percent (1%)
of the total number of shares or principal amount of the securities of such
issuer outstanding.
B. CONFIDENTIALITY. The Executive holds in a fiduciary capacity for the
benefit of Xxxxxx all information, knowledge and data relating to or concerned
with Xxxxxx'x operations, sales, marketing, customers, sources of supply,
sources of labor, business and financial information and employees. The
Executive will not at any time, directly or indirectly, use or disclose any such
trade secrets or confidential information belonging to Xxxxxx, of which the
Executive acquired knowledge during and on account of the Executive's employment
by Lanier other than to Xxxxxx or its designees and employees or except as may
otherwise be required in connection with the business and affairs of Xxxxxx. The
Executive recognizes and acknowledges that Xxxxxx'x trade secrets and
confidential information constitute valuable, special, and unique assets of
Xxxxxx and any disclosure thereof contrary to the terms of this Agreement would
cause substantial loss of
9
competitive advantage and other serious injury to Xxxxxx, and that the knowledge
of trade secrets and confidential information may be inevitably disclosed by the
Executive if he obtains a position with a competitor company. The Executive
further acknowledges that under such circumstances, it would be extremely
difficult for him not to disclose, rely on or use Xxxxxx'x trade secrets and
confidential information, and he could not be depended upon to voluntarily avoid
this, thereby causing a threat of substantial and irreparable harm to Xxxxxx.
The Executive further acknowledges that the experience and the close
relationships with customers of Xxxxxx acquired by the Executive while employed
by Xxxxxx would also enable the Executive to cause substantial harm to Lanier
should the Executive compete with Xxxxxx in its business before the expiration
of a reasonable time after termination of the Executive's employment with
Lanier.
C. REASONABLENESS. The Executive acknowledges and agrees that the
covenants contained in Sections V-A herein are reasonable in time, geographic
area, scope and in all other respects; that such covenants shall be construed as
agreements independent of each other and of any provision of this or any other
contract between the parties hereto; that should any part or provision of any
covenant be held invalid, void or unenforceable in any court of competent
jurisdiction, such invalidity, voidness or unenforceability shall not render
invalid, void or unenforceable any other part or provision of this Agreement. If
any portion of the foregoing provisions is found to be invalid or unenforceable
by a court of competent jurisdiction because its duration, the territory, the
definition of activities or the definition of information covered is considered
to be invalid or unreasonable in scope, the invalid or unreasonable term shall
be modified or redefined, or a new enforceable term provided, such that the
intent of Xxxxxx and the Executive in agreeing to the provisions of this
Agreement will not be impaired and the provision in question shall be
enforceable to the fullest extent of the applicable laws; and that the existence
of any claim or cause of action by the Executive against Xxxxxx, whether
predicated upon this or any other contract, shall not constitute a defense to
the enforcement by Xxxxxx of said covenants.
D. PROPRIETARY MATERIALS. All discoveries made, inventions created, and
all ideas, concepts, designs, formulas, proposals, projects, progress, products,
processes, systems, techniques, and improvements of whatever kind conceived or
developed by the Executive directly or indirectly, alone or jointly with others,
in the course of employment, whether during normal business hours or otherwise
(hereinafter "Proprietary Materials"), shall be and remain the sole and
exclusive property of Xxxxxx. The Executive shall fully and promptly disclose to
Xxxxxx all such Proprietary Materials, together with all information and data
necessary to impart a full understanding of the same. Upon request and without
further compensation from Xxxxxx, but at Xxxxxx'x expense, the Executive will
(i) execute, acknowledge, and deliver all such papers and instruments as Xxxxxx
may deem necessary in order for it to perfect, secure, and maintain all rights,
title, and interest in and to any Proprietary Materials, including, without
limitation, any and all patent, copyright, trademark, and trade secrets, rights
and protections in the same, and (ii) aid and assist Lanier in any litigation
involving the maintenance or establishment of such rights and protections,
including, if necessary, testifying on behalf of Xxxxxx.
10
E. RETURN OF MATERIALS. Upon the request of Xxxxxx and, in any event,
upon the termination of the Executive's employment with Xxxxxx or any of its
subsidiaries or affiliated companies, the Executive shall deliver to Xxxxxx all
memoranda, notes, records, manuals or other documents (including, but not
limited to, written instruments, voice or data recordings, or computer tapes,
disks or files of any nature), including all copies of such materials and all
documentation prepared or produced in connection therewith, pertaining to the
performance of the Executive's services for Xxxxxx or any of its subsidiaries or
affiliated companies, the business of Xxxxxx or any of its subsidiaries or
affiliated companies, or containing trade secrets or confidential information
regarding the business of Xxxxxx or of any of its subsidiaries or affiliated
companies' businesses, whether made or compiled by the Executive or furnished to
the Executive by virtue of his employment with Lanier or any of its subsidiaries
or affiliated companies.
F. REMEDIES. If the Executive commits a breach, or threatens to commit
a breach, of any of the provisions of this Section V, Lanier shall have the
following rights and remedies:
1) The right and remedy to have the provision of this Section V
enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened
breach will cause irreparable injury to Xxxxxx and that money
damages will not provide an adequate remedy to Xxxxxx; and
2) The right and remedy to require the Executive to account for
and pay over to Xxxxxx all compensation, profits, monies,
accruals, increments, or other benefits (hereinafter
collectively referred to as the "Benefits") derived or received
by the Executive as the result of any transactions constituting
a breach of any of the provisions of this Section V, the
Executive hereby agreeing to account for and pay over the
Benefits to Xxxxxx.
VI. INDEMNIFICATION
To the fullest extent permitted by law, Xxxxxx shall indemnify
the Executive (including the advancement of expenses) for any judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees,
incurred by the Executive in connection with the defense of any lawsuit or other
claim to which he is made a party by reason of being an officer, director or
employee of Xxxxxx or any of its affiliates during the Employment period and for
at least three (3) years thereafter, Lanier shall make every reasonable effort
to maintain customary director and officer liability insurance covering the
Executive for acts and omissions during the Term. Any termination of the
Executive's employment or this Agreement shall have no effect on the continuing
operation of this Section VI.
VII. MISCELLANEOUS
11
A. REPRESENTATION OF EXECUTIVE. Executive represents and warrants that
he has full power and authority to enter into this Agreement and that this
Agreement is the valid and binding obligation of Executive enforceable against
Executive in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, or other equitable principles. The execution,
delivery and performance of this Agreement by Executive will not conflict with,
or result in a breach of, any other agreement or understanding to which
Executive is a party.
B. REPRESENTATION OF XXXXXX. Xxxxxx has full corporate power and
authority to execute and deliver this Agreement and this Agreement is the valid
and binding obligation of Xxxxxx enforceable against Xxxxxx in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
and other equitable principles. The execution, delivery and performance of this
Agreement by Xxxxxx will not conflict with any agreement or understanding to
which Xxxxxx is a party.
C. WAIVER. MODIFICATION. No provision of this Agreement may be modified
or waived unless such modification or waiver is agreed to in writing and signed
by Executive and by a duly authorized officer of Xxxxxx. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Failure by Executive
or Lanier to insist upon strict compliance with any provision of this Agreement
or to assert any right Executive or Lanier may have hereunder, including without
limitation, the right of Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement. Except as otherwise specifically provided
herein, the rights of, and benefits payable to, Executive, Executive's estate or
Executive's beneficiaries pursuant to this Agreement are in addition to any
rights of, or benefits payable to, Executive, Executive's estate or Executive's
beneficiaries under any other employee benefit plan or compensation program of
Xxxxxx.
D. NOTICES. Any notice required, permitted or desired to be given
pursuant to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or by
responsible overnight delivery service or sent by certified mail, return receipt
requested, postage and fees prepaid as follows:
If to Xxxxxx, at the address set forth below:
J. Xxxxxxx Xxxxx
Vice-President and General Counsel
Xxxxxx Worldwide, Inc.
0000 XxxxXxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
If to Executive, at his address set forth above.
12
Either of the parties hereto may at any time and from time to time change the
address to which notice shall be sent hereunder by notice to the other party as
provided in this Section. The date of the giving of any notice hand delivered or
delivered by responsible overnight carrier shall be the date of its delivery and
of any notice sent by mail shall be the date five days after the date of the
posting of the mail.
E. AUTHORITY. The provisions of this Agreement required to be approved
by the Board of Lanier have been so approved and authorized.
F. GOVERNING LAW, VALIDITY. THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO THE
PRINCIPLE OF CONFLICTS OF LAWS. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN
FULL FORCE AND EFFECT.
G. RESOLUTION OF DISPUTES.
1) If a legally cognizable dispute arises out of or relates to this
Agreement or the breach, termination, or validity thereof, or the
compensation, promotion, demotion, discipline, discharge or terms and
conditions of employment of the Executive, and if said dispute cannot be
settled through direct discussions, the parties agree to resolve the
dispute by binding arbitration before the American Arbitration
Association ("AAA"), Center for Public Resources, Judicial Arbitration
and Mediation Services, or the President of the State Bar Association of
the state (or the President's designee) where the arbitration shall be
held. Arbitration proceedings shall be held in Atlanta, Georgia, or at
such other place as may be selected by the mutual agreement of the
parties. The arbitration shall proceed in accordance with the Employment
Dispute Resolution Rules of the AAA in effect on the date of this
Agreement, and judgment upon the award rendered by the arbitrator shall
be final and may be entered in any court having jurisdiction thereof;
provided, however, that claims or disputes involving the breach or
alleged breach by Executive of any of the covenants or obligations set
forth in Section V of this Agreement may, at Xxxxxx'x discretion, be
settled by any court having jurisdiction thereof or decided by
arbitration pursuant to this section.
2) Disputes subject to binding arbitration pursuant to this section
include all tort and contract claims, as well as claims brought under
all applicable federal, state or local statutes, laws, regulations or
ordinances, including but not limited to, Title VII of the Civil Rights
Act of 1964, as amended, the Family and Medical Leave Act; the
Americans with Disabilities Act the Rehabilitation Act of 1973, as
amended; the Fair Labor Standards Act of 1938, as amended; the Age
Discrimination in Employment Act, as amended; the Equal Pay Act; the
Civil Rights of 1866, as amended; and the Employee Retirement Income
Security Act
13
of 1974. Disputes subject to binding arbitration pursuant to this
section also include claims against Xxxxxx'x parent and subsidiaries,
and affiliated and successor companies, and claims against Xxxxxx that
include claims against Xxxxxx'x agents and employees, in their capacity
as such and otherwise.
3) The arbitration award shall be in writing and shall specify the
factual and legal bases for the award. In rendering the award, the
arbitrator shall determine the respective rights and obligations of the
parties according to the laws of the State of Georgia or, if
applicable, federal law. The arbitrator shall have the authority to
award any remedy or relief that a federal or state court within the
State of Georgia could order or grant, including without limitation,
specific performance of any obligation created under this Agreement; an
award of punitive, exemplary, statutory, or compensatory damages; the
issuance of an injunction or other provisional relief; or the
imposition of sanctions for abuse or frustration of the arbitration
process.
4) Each party shall pay for its own fees and expenses of arbitration
including the expense of its own counsel, experts, witnesses and
preparation and presentation of evidence, except that the cost of the
arbitrator and any filing fee exceeding the applicable filing fee in
federal court shall be paid by Xxxxxx; provided, however, that all
reasonable costs and fees necessarily incurred by any party are subject
to reimbursement from the other party at the discretion of the
arbitrator.
H. PARAGRAPH HEADINGS. The Paragraph and subparagraph headings
contained in this Agreement are for convenience only and shall in no manner be
construed as part of this Agreement.
I. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and together shall constitute one and the
same Agreement.
J. INVALIDITY OF PROVISIONS. Should any part of this Agreement for any
reason be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of any remaining parts, which remaining
parts shall continue in full force and effect as if this Agreement had been
executed with the invalid part or parts thereof eliminated, it being the
intention of the Parties hereto that they would have executed the remaining
parts of this Agreement without including any such part or parts which may for
any reason be hereafter declared invalid.
K. CONSTRUCTION. When used herein, the masculine gender shall be deemed
to include the feminine gender, and the singular shall be deemed to include the
plural, unless the context clearly indicates to the contrary.
L. EMPLOYMENT WITH SUBSIDIARIES. Employment with Xxxxxx for purposes of
this Agreement shall include employment with any Subsidiary.
14
IN WITNESS WHEREOF, Xxxxxx has hereunto caused its corporate name to be
signed and its corporate seal to be affixed by its duly authorized officer, and
the Executive has hereunto set his hand and seal, all as of the day and year
first written above.
XXXXXX WORLDWIDE, INC. EXECUTIVE
Signature: /s/ Xxxxxx X. Xxxxxxxx Signature: /s/ C. Xxxxx Xxxxxx
--------------------------- -------------------------
Title: Chief Executive Officer C. Xxxxx Xxxxxx
15
EXHIBIT "A"
SCHEDULE OF CURRENT COMPENSATION
The undersigned hereby agree that Executive's current compensation due
under Paragraph II-A of the foregoing Employment Agreement shall be $425,000 per
year beginning November 29, 2000 and for such period thereafter until hereafter
changed by mutual agreement.
This 29th day of November, 2000.
XXXXXX WORLDWIDE, INC. EXECUTIVE
Signature: /s/ Xxxxxx X. Xxxxxxxx Signature: /s/ C. Xxxxx Xxxxxx
--------------------------- ------------------------
Title: Chief Executive Officer C. Xxxxx Xxxxxx