EXHIBIT 10.2
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EXECUTIVE EMPLOYMENT CONTRACT
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THIS EXECUTIVE EMPLOYMENT CONTRACT (this "Agreement") is made on this
10th day of March, 2004, by and between X. X. XXXXX CORPORATION, an Ohio
corporation having a principal place of business located at 00000 Xxxxxxxx Xxxx,
X.X., Xxxxxxxxxxxx, Xxxx 00000 (the "Company"), and XXXXXX X. XXX XXXXXX, an
individual having an address of 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 (the "Executive").
WITNESSETH:
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WHEREAS, the Company has offered and the Executive has accepted
employment with the Company under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
expressed in this Agreement, the parties hereto make the following agreement,
intending to be legally bound hereby:
1. EMPLOYMENT.
(a) The Company will employ the Executive, and the Executive
agrees to serve, as the interim Chief Executive Officer and interim President of
the Company (the "Position"), in accordance with the terms and conditions of
this Agreement, for a period of six (6) months (the "Initial Term"), commencing
on the date of this Agreement (the "Commencement Date"), and ending on September
9, 2004, unless sooner terminated as hereinafter set forth. The Initial Term may
be extended for three (3) month intervals (each an "Extension") upon the mutual
agreement of the Company and the Executive, such agreement shall be in writing
and signed by both parties (the Initial Term as such term may be extended by an
Extension is sometimes hereinafter referred to as the "Term"). The Position and
the offices related thereto shall be located in the Pickerington, Ohio office of
the Company. During the Term of this Agreement, the Executive shall report to
the Board of Directors of the Company by reporting directly to the specified
Director(s) as the point(s) of contact for the Board of Directors. The initially
specified Directors are Xxxxxx Xxxx and Xxxxxx Xxxxxxxx.
(b) It is hereby acknowledged and agreed by the Company that this
Agreement and the employment of the Executive hereunder shall not affect the
Company's decision whether to continue to retain the services of The Meridian
Group in the restructuring efforts of the Company. The Company hereby further
acknowledges that the President of The Meridian Group is Xxxxxxxx X. Good and
that she is the wife of the Executive. As such, any and all invoices produced by
The Meridian Group for payment by the Company shall be reviewed and approved by
the Chief Financial Officer of the Company, without any input or approval from
the Executive.
(c) It is hereby further agreed by the Company that the prior
Chief Executive Officer, Xx. Xxxxxx Zacks, shall: (i) set up his principal
office outside of the headquarters building of the Company; (ii) remain involved
in the affairs of the Company solely in his capacity as a member of the Board of
Directors of the Company and as Chairman of the Board and on those special
matters at the direction of the Executive; and (iii) visit the Company's
locations only on official Board of Directors matters or upon the specific
request of the Executive.
2. DUTIES AND RESPONSIBILITIES OF THE POSITION.
(a) The Executive will be primarily responsible for the operations
of the Company including, but not limited to, production, sourcing, planning,
distribution, marketing and sales.
(b) In addition to the primary duties of the Position, the
Executive shall oversee the functional departments within the Company, such as
finance, communications, information technology and other administrative staff,
and all such departments shall report directly to the Executive. The Executive
shall also oversee all restructuring and refinancing-related efforts or sale of
the Company; such efforts shall be subject, however, to the approval of the
Board of Directors.
(c) In connection with the performance of the duties and
responsibilities of the Position, the Executive shall have the authority and the
power to hire, reassign and fire employees, professionals and consultants and
shall have the authority to re-align the reporting relationships within the
Company, subject to prior Board approval for actions affecting senior
executives. Board approval is required to: (i) make changes to the terms of the
Company's engagement of The Meridian Group; (ii) change the Company's
independent auditors; (iii) enter into any engagement involving material
expenditures; and (iv) carry out programs or actions that require specific Board
approval under the rules of the New York Stock Exchange, applicable law or an
established Board policy as communicated to Executive.
(d) Further, in connection with the performance of the duties and
responsibilities of the Position, the Executive shall have the right to receive
any and all notices of, and to attend, any and all meetings of the Board of
Directors of the Company and each of its Committees, except for certain matters
for which the Board or the Committee may specifically ask the Executive to
excuse himself, and, in addition thereto, to receive true and correct copies of
the minutes of all such meetings.
(e) The Executive agrees to devote reasonable attention and time
during normal business hours to the business and affairs of the Company and, to
the extent necessary to discharge the duties and responsibilities of the
Position, to use the Executive's reasonable best efforts to perform faithfully
and efficiently such duties and responsibilities.
3. COMPENSATION. The terms of the Executive's total compensation
during the Term shall be as follows:
(a) Base Salary: The Executive shall be paid by the Company a
base salary of FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS per month
(the "Base Salary") for the Initial Term and the first Extension, which
shall be subject to adjustment by the Board of Directors and Executive
at the time of the second and any subsequent Extensions.
(b) Options: In addition to the Base Salary, the Executive
shall be granted on the Commencement Date a non-qualified option for
100,000 shares of the Company's common stock at a price per share equal
to the closing price per share of the Company's common stock on the
Commencement Date (the "Initial Stock Option") and on September 10,
2004, if the parties have agreed to a first Extension, a non-qualified
option for 50,000 shares of the Company's common stock at a price per
share equal to the closing price per share of the Company's common
stock on such grant date (the "Second Stock Option"). The Initial Stock
Option shall vest in full on the earlier of (1) the last day of the
Initial Term if Executive is employed by the Company on that day, (2)
the date on which the Company terminates Executive's employment for any
reason other than for Cause (as defined below), (3) the date on which
Executive terminates his employment for Good Reason (as defined below),
or (v) the date of a Sale of the Company (as defined below). The Second
Stock Option, if granted, shall vest in full on the earlier of the (1)
the last day of the first Extension if Executive is employed by the
Company on that day, (2) the date during such first Extension on which
Executive is terminated by the Company for any reason other than for
Cause (as defined below), (3) the date during such first Extension on
which Executive terminates his employment for Good Reason (as defined
below), or (v) the date of a Sale of the Company (as defined below).
Unless earlier terminated in connection with a Sale, the Initial Stock
Option and the Second Stock Option, if they become vested, shall be
exercisable by the Executive, at his sole discretion, for a period of
two years from the date of grant. For purposes of this Section 3(b) a
"Sale" of the Company shall refer to a merger, consolidation or similar
transaction or a sale of all or substantially all of the assets of the
Company.
Executive understands that the Initial Stock Option will be
comprised of two stock options: one stock option for 50,000 shares will
be granted pursuant to the Company's 2002 Stock Incentive Plan, and a
second stock option for 50,000 shares (the "Special Option") will be
granted pursuant to a separate stock option agreement and not pursuant
to a shareholder-approved stock option plan. The stock option for
50,000 shares to be granted on the first day of the first Subsequent
Term will be granted pursuant to the 2002 Stock Incentive Plan.
Executive understands that neither the Special Option nor the shares
issuable upon exercise of the Special Option will be registered under
the Securities Act of 1933 in reliance upon an exemption from
registration which may impose trading restrictions on the option
shares. Executive also understand that the New York Stock Exchange
requires the Company to issue a press release announcing the grant of a
non-shareholder approved stock option as an inducement to employment.
(c) Benefit Plans: The Executive shall be entitled to
participate in any and all benefit plans made available to other senior
executive officers of the Company (other
than plans that have been frozen or terminated and are no longer
available to new executive officers).
(d) Cash Bonus: The Board will fix an EBITDA target for the
Company for fiscal year 2004 (the "EBITDA Target") at the March meeting
of the Board of Directors. If the Company achieves the EBITDA Target,
and Executive has served in the Position for the entire Initial Term,
the Company shall pay Executive a cash bonus in the amount of One
Hundred Thousand Dollars ($100,000). Such payment shall be made as soon
as reasonably practicable after the appropriate EBITDA calculations can
be made. If the Company achieves the EBITDA Target and Executive has
served in the Position for the Initial Term and a first Extension, he
shall be paid a cash bonus of $200,000 (but not in addition to the
$100,000 amount provided above), said $200,000 amount to be paid as
soon as reasonably practicable after the appropriate EBITDA
calculations are made. If Executive is terminated without Cause or he
leaves for Good Reason during the Initial Term or the first Extension,
he shall be paid a bonus as described above as if he had completed the
term in which his employment terminated. If prior to the end of the
fiscal year 2004 the Company is party to a Sale, Executive shall be
paid a cash bonus in lieu of those described above in the amount of
$100,000 payable upon the consummation of the Sale. The amounts paid to
Executive pursuant to this paragraph shall be made without deduction or
withholding unless the Company is required to make such deduction or
withholding under applicable tax laws.
4. TRANSACTION SUCCESS FEE. In the event of a sale, merger,
consolidation or any other business combination, in one or a series of related
transactions, involving all or a substantial amount of the business, securities
or assets (including related real estate assets) of the Company, or any
recapitalization of the Company or any spin-off, split-off or other
extraordinary dividend of cash, securities or other assets to the equity holders
of the Company (each, a "Sale Transaction") that is consummated during the
Transaction Period (as defined below), the Company shall pay to Executive a
Transaction Success Fee (as defined below).
The Transaction Period shall begin on the Commencement Date and end on
the earlier of (1) any date during the Initial Term or any Extension on which
Executive terminates his employment with the Company other than for Good Reason,
on which Executive terminates this Agreement prior to the end of the Initial
Term or any Extension, (2) the second anniversary of the last day of the Initial
Term or (3) any date on which Executive has been terminated for Cause.
The Transaction Success Fee shall be one (1%) percent of the aggregate
amount of consideration ("Sale Consideration") received or to be received by the
Company and/or its shareholders (treating any shares issuable upon exercise of
options, warrants or other rights of conversion as outstanding), plus the amount
of any debt assumed, acquired, remaining outstanding, retired or defeased or
preferred stock redeemed or remaining outstanding in connection with the Sale
Transaction (the "Sale Transaction Success Fee"). Such consideration may
include, but is not limited to, payments in cash, stock, real and personal
property, warrants and options, fees, notes, debentures or other debt assumption
or relief of any debt (including guarantees), earn-outs, royalties, the total
amount of non-compete, employment, consulting and
lease agreements or amendments thereto, and all other elements of value
exchanged, or to be exchanged, in connection with the Sale Transaction.
The Sale Transaction Success Fee shall be payable in cash at consummation of a
Sale Transaction. For purposes of this Agreement, a Sale Transaction shall be
deemed to have been consummated upon the earliest of any of the following events
to occur: (a) the acquisition of a majority of the equity securities of the
Company calculated on a fully-diluted basis; (b) a merger or consolidation of
the Company or any affiliate of the Company with another person; (c) the
acquisition by another person of assets of the Company representing a majority
of the Company's book value; (d) the acquisition by the Company of assets of
another person representing a majority of such person's book value, or (e) in
the case of any other Sale Transaction, the closing thereof.
In the event that the consideration received in a Sale Transaction is paid in
whole or in part in the form of securities or other assets, the value of such
securities or other assets, for purposes of calculating the Sale Transaction
Success Fee, shall be the fair market value thereof, as the parties hereto shall
mutually agree, on the day prior to the consummation of the Sale Transaction;
provided, however, that if such consideration includes securities with an
existing public trading market, the value thereof shall be determined by the
last sales price for such securities on the last trading day thereof prior to
such consummation. In the event that all or some portion of the Sale
Consideration is related to the future earnings or operations of the Company,
the portion of the Sale Transaction Success Fee relating thereto shall be
calculated and shall be paid at the time the Sale Transaction is consummated (as
determined by the preceding paragraph) based upon the estimated net present
value thereof.
This Section 4 shall survive any termination of this Agreement.
5. BUSINESS EXPENSES. The Company shall reimburse the Executive
promptly and in full for any and all business expenses incurred by the Executive
by reason of temporary living arrangements in Columbus, Ohio, any and all
reasonable, ordinary and necessary travel, entertainment and any and all other
expenses in accordance with Company policy applicable to senior executives. In
addition, the Company shall reimburse Executive for the reasonable fees and
expenses of his counsel (not to exceed $7,500) incurred in the preparation,
negotiation and approval of this Agreement.
6. TERMINATION OF EMPLOYMENT. This Agreement and the employment
of the Executive hereunder may be terminated under the following conditions:
(a) Mutual Consent: By the mutual consent of the Company and
the Executive.
(b) For Cause: The Company may terminate this Agreement and
the employment of the Executive hereunder for "Cause". For the purposes
of this Agreement, the following events shall constitute "Cause":
(i) gross negligence materially detrimental to the
Company;
(ii) conviction of, or a plea of guilt/nolo
contendere to, a felony or a crime involving
dishonesty;
(iii) willful and continued failure of the Executive
to perform the duties or responsibilities of the
Position and such failure continues for thirty
(30) days after the Executive's receipt of
written notice from the Company setting forth
the specifics of such failure, unless such
failure is the result of ill health or physical
or mental disability; or
(iv) intentional misconduct of the Executive which is
materially and demonstrably injurious to the
Company.
(c) Good Reason. This Agreement and the employment of the
Executive hereunder may be terminated by the Executive for "Good
Reason". For the purposes of this Agreement, the term "Good Reason"
shall mean:
(i) (A) The assignment to the Executive of any duty
or responsibility inconsistent in any respect
with the Position, authority, duties or
responsibilities as contemplated in Paragraph 2
above, or (B) any other action by the Company
which results in a material diminution in the
Position, authority, duties or responsibilities,
which in case of (A) or (B) continues for ten
(10) days after written notice of such action
from the Executive to the Company;
(ii) Any reduction, directly or indirectly, in the
Executive's Base Salary, Options or any benefit
plans described in Paragraph 3 above (other than
frozen or terminated plans);
(iii) Any other failure by the Company to comply with
any term, condition or provision of this
Agreement which continues for ten (10) days
after written notice of such failure from the
Executive to the Company.
(d) Death or Disability: This Agreement and the employment of
the Executive hereunder shall terminate automatically upon the death of
the Executive. Further, the Company may terminate this Agreement and
the employment of the Executive hereunder after having established the
Executive's Disability (as defined below), upon not less than thirty
(30) days' prior written notice of such termination; provided, however,
that during such thirty (30) days, the Executive shall not have
returned to the full time performance of the duties and
responsibilities of the Position. For the purposes of this Agreement,
the term "Disability" shall mean a disability which is determined to be
total and permanent by a physician selected by the Company and
reasonably acceptable to the Executive or the Executive's legal
representative.
(e) Automatic Termination. This Agreement and the employment
of the Executive hereunder shall terminate upon the expiration of the
then-current Term, unless renewed or extended in a writing signed by
the Company and the Executive.
7. SEVERANCE PAY. (a) In the event that this Agreement and the
employment of the Executive hereunder is terminated by the Company prior to the
expiration of the then-current Term for any reason other than for Cause, or (b)
if the Executive terminates this Agreement and his employment hereunder at any
time during the then-current Term for Good Reason, then, in either such event,
the Executive shall be entitled to a one time lump sum severance payment equal
to the Base Salary multiplied by the number of months remaining in the
then-current Term.
8. CONFIDENTIAL INFORMATION. The Executive acknowledges that the
services which he will be providing to and for the Company or its affiliates
will give him access to, and the Executive hereby agrees to hold in a fiduciary
capacity for the benefit of the Company, any and all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Term of this Agreement and which shall not be public
knowledge (other than by acts of the Executive or his representative in
violation of this Agreement). After the expiration or earlier termination of
this Agreement and the employment of the Executive hereunder, the Executive
shall not, without prior written consent of the Company, or unless required to
do so by order of a court, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
In no event shall an asserted violation of the provisions of this Paragraph
constitute a basis for deferring or withholding any amounts otherwise payable to
the Executive under this Agreement.
9. INDEMNIFICATION. Executive shall be indemnified to the same
extent as the most favorable indemnification provided by the Company to any
other officers or directors. The Company hereby agrees to defend any and all
suits, actions, causes of action or claims brought against the Executive and/or
his representatives, agents, attorneys, insurers, heirs, executors,
administrators, beneficiaries, successors and assigns for or on account of any
injuries, damages or costs alleged to have been caused by, through, or in
connection with the employment of the Executive or the performance of the duties
or responsibilities of the Position by the Executive as contemplated in this
Agreement including, but not limited to, any suits, actions, causes of action or
claims brought by or on behalf of any shareholder or stakeholder, and further
hereby agrees to indemnify and hold harmless the Executive, his representatives,
agents, attorneys, insurers, heirs, executors, administrators, beneficiaries,
successors and assigns from and against any and all claims, damages, demands,
actions, causes of action, suits, debts due, sums of money, accounts, interest,
costs and expenses of whatever kind and nature including, but without
limitation, attorneys' fees and other expenses caused by and/or arising from or
relating to the employment of the Executive or the performance of the duties or
responsibilities of the Position by the Executive as contemplated in this
Agreement. The Company shall include Executive as a covered person under all
director and officer liability policies maintained by Company and shall use its
best commercial efforts to maintain such coverage for a period of two (2) years
after Executive's termination of employment hereunder.
10. MISCELLANEOUS.
(a) Notices. Whenever any notice, demand or request is required or
permitted under this Agreement, such notice, demand or request shall be in
writing and shall be: (i) delivered by hand; (ii) sent by United States
certified mail, postage prepaid, return receipt requested; or (iii) be sent by
nationally recognized commercial courier for next business day delivery, to the
addresses set forth below, or to such other addresses as are specified by
written notice given in accordance herewith. All notices, demands or requests
delivered by hand shall be deemed given upon the date so delivered; those given
by mailing as hereinabove provided shall be deemed given on the date of deposit
in the United States mail; and those given by commercial courier as hereinabove
provided shall be deemed given on the date of deposit with the commercial
courier. Nonetheless, the time period, if any, in which a response to any
notice, demand or request must be given shall commence to run from the date of
receipt of the notice, demand or request by the addressee thereof. Any notice,
demand or request not received because of changed address of which no notice was
given as hereinabove provided or because of refusal to accept delivery shall be
deemed received by the party to whom addressed on the date of hand delivery, on
the first calendar day after deposit with commercial courier, or on the third
(3rd) calendar day following deposit in the United States mail, as the case may
be.
IF TO EXECUTIVE: XX. XXXXXX X. XXX XXXXXX
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
WITH COPY TO: Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC
U.S. Steel Tower
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: X. Xxxx May, Esq.
IF TO COMPANY: X. X. XXXXX CORPORATION
00000 Xxxxxxxx Xxxx, X.X.
Xxxxxxxxxxxx, XX 00000
Attention: Lead Director
WITH COPY TO: Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Suite 2000, Atrium Two, 000 Xxxx Xxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxxxxx
(b) Binding Agreement. This Agreement shall be binding upon and
enforceable by, and shall inure to the benefit of, the Executive and his heirs,
executors, personal or legal representatives, administrators, successors and
assigns.
(c) Headings. The use of headings, captions and numbers in this
Agreement is solely for the convenience of identifying and indexing the various
provisions in this Agreement and shall in no event be considered otherwise in
construing or interpreting any provision in this Agreement.
(d) Defined Terms. Capitalized terms used in this Agreement shall
have the meanings ascribed to them at the point where first defined,
irrespective of where their use occurs, with the same effect as if the
definitions of such terms were set forth in full and at length every time such
terms are used.
(e) Pronouns. Wherever appropriate in this Agreement, personal
pronouns shall be deemed to include the other genders and the singular to
include the plural.
(f) Severability. If any term, covenant, condition or provision of
this Agreement, or the application thereof to any person or circumstance, shall
ever be held to be invalid or unenforceable, then in each such event the
remainder of this Agreement or the application of such term, covenant, condition
or provision to any other person or any other circumstance (other than those as
to which it shall be invalid or unenforceable) shall not be thereby affected,
and each term, covenant, condition and provision hereof shall remain valid and
enforceable to the fullest extent permitted by law.
(g) Non-Waiver. Failure by any party to complain of any action,
non-action or breach of any other party shall not constitute a waiver of any
aggrieved party's rights hereunder. Waiver by any party of any right arising
from any breach of any other party shall not constitute a waiver of any other
right arising from a subsequent breach of the same obligation or for any other
default, past, present or future.
(h) Rights Cumulative. All rights, remedies, powers and privileges
conferred under this Agreement shall be cumulative and in addition to, but not
restrictive of or in lieu of, those conferred by law.
(i) Dates. If any date set forth in this Agreement shall fall on,
or any time period set forth in this Agreement shall expire on, a day which is a
Saturday, Sunday, federal or state holiday, or other non-business day, such date
shall automatically be extended to, and the expiration of such time period shall
automatically to be extended to, the next day which is not a Saturday, Sunday,
federal or state holiday or other non-business day. The final day of any time
period under this Agreement or any deadline under this Agreement shall be the
specified day or date, and shall include the period of time through and
including such specified day or date.
(j) Applicable Law. This Agreement shall be governed by, construed
under and interpreted and enforced in accordance with the laws of the State of
Ohio, without regard to principles of conflicts of laws.
(k) Entire Agreement, Modification. This Agreement supersedes all
prior discussions and agreements by and between the Company and the Executive
with respect to the employment
of the Executive with and by the Company and other matters contained herein, and
this Agreement contains the sole and entire understanding between the Company
and the Executive with respect thereto. This Agreement shall not be modified or
amended except by an instrument in writing executed by or on behalf of the
Company and the Executive .
(l) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
(m) Counsel. Each party hereto warrants and represents that each
party has been afforded the opportunity to be represented by counsel of its
choice in connection with the execution of this Agreement and has had ample
opportunity to read, review, and understand the provisions of this Agreement.
(n) No Construction Against Preparer. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party by any court or other governmental or judicial authority by reason of such
party's having or being deemed to have prepared or imposed such provision.
IN WITNESS WHEREOF, this Agreement has been duly executed on behalf of
the Company by an officer duly authorized in the premises and by the Executive
on the date first above written.
COMPANY:
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WITNESS: X. X. XXXXX CORPORATION
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxx
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Title: Sr. VP Finance - CFO
EXECUTIVE:
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WITNESS:
/s/ X.X. Xxxxxxx /s/ Xxxxxx X. Xxx Xxxxxx
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X.X. Xxxxxxx XXXXXX X. XXX XXXXXX
