EXHIBIT 10.35
XXXXXXX COMPANY
XXXXXXX HOLDINGS, INC.
XXX XXXXXXXXX XXXXXXX, XXXXX 000
XXXXXXX, XXXXXXX 00000
October 11, 2001
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Dear Xxx:
This letter confirms your agreement with Xxxxxxx Company (the
"Company") and Xxxxxxx Holdings, Inc. ("Holdings") concerning the remainder of
your employment, your deferred resignation and your severance arrangements, as
follows:
1. It is agreed that, effective July 16, 2001 (the "Effective Date" of
this Agreement), you are reassigned from the position of Executive Vice
President - Human Resources to the position of Special Projects Executive,
reporting to the Chairman and Chief Executive Officer of the Company or his
designee. During the remainder of your employment with the Company, your base
salary will continue at the rate in effect on July 15, 2001. Subject to your
satisfaction of the conditions and other provisions as set forth in Paragraph 3,
below, you will also be eligible to earn a bonus for the Company's fiscal year
ending December 29, 2001 (the "2001 Fiscal Year") in accordance with Section
IV.B of the employment agreement between you and the Company dated as of June
29, 1998 (the "Employment Agreement"). Options issued to you to purchase the
common stock, $0.01 par value, of Holdings ("Holdings Common Stock") pursuant to
the Stock Option Agreements between you and Holdings dated as of October 29,
1998, September 23, 1999 and November 17, 2000 (collectively, the "Stock Option
Agreements") will continue to be eligible to vest during the remainder of your
employment in accordance with the terms of the Stock Option Agreements, as
modified by Paragraph 3(f) below. You will not be eligible for an annual bonus
for the Company's fiscal year ending December 28, 2002 or thereafter; nor will
you be eligible, in Fiscal Year 2002 or thereafter, for additional stock option
grants or awards of phantom shares under the Company's Phantom ESOP Plan for
senior management or further vesting of options or phantom shares previous
granted or awarded. During the remainder of your employment, you may continue to
participate in group benefit plans made generally available by the Company to
its employees, to the extent permitted by plan terms and Company policies and by
applicable law. Without limiting the generality of the foregoing sentence, the
Company will make a contribution to your account under its 401(k) Plan for the
2001 Plan year if permitted by plan terms and applicable law.
2. Subject to earlier termination in accordance with Section VII or
subsection B, C or D of Section VIII of the Employment Agreement or earlier
termination by the Company on a date prior to January 1, 2002 other than for
death, disability or "Cause, you hereby voluntarily and irrevocably resign your
employment, and all positions and offices held by you, with the Company,
Holdings or any of the Company's other Affiliates, effective January 1, 2002
(the "Resignation Date"), and the Company hereby accepts your resignation,
effective as of that date. Nothing in this letter shall be construed as an early
retirement election.
3. In the event that your employment with the Company terminates on
January 1, 2002 as a result of your resignation or in the event that your
employment is terminated by the Company on a date prior to January 1, 2002 other
than for death, disability or "Cause," as defined in Section VIII D(i) of the
Employment Agreement, (the "Early Separation Date"), then, in consideration of
your acceptance of this Agreement and subject to your material compliance, after
the Resignation Date or, as applicable, the Early Separation Date, with your
obligations under this Agreement and under Section IX of the Employment
Agreement which survive termination of your employment, the Company will provide
you the following:
a) Within ten business days following the effective date of the Release
of Claims, as defined below, or, if later, February 1, 2002, you will
receive a payment in the amount of Three Hundred and Thirty-Four
Thousand, Eight Hundred and Seventy-Five Dollars ($334,875.00). In
addition, if your employment ends as of the Early Separation Date, the
Company will continue to pay you your base salary from the next
business day immediately following the Early Separation Date through
January 1, 2002, which payments shall commence on the next regular
payday which is at least five business days following the effective
date of the Release of Claims, but shall be retroactive to the next
business day immediately following the Early Separation Date.
b) The Company will pay you a bonus for Fiscal Year 2001, if earned, in
accordance with your bonus program in effect on July 15, 2001, which
bonus shall be determined on the basis of the Company's audited Fiscal
Year 2001 financial results in accordance with the terms of the bonus
program and shall be payable to you on or about April, 2002, at the
time such bonuses are paid to other employee participants or, if later,
within ten business days following the effective date of the Release of
Claims. Payment of the bonus described here shall be in full
satisfaction of any right you have to a bonus for Fiscal Year 2001
under Section IV.B of the Employment Agreement for Fiscal Year 2001.
c) Following the Resignation Date or, if applicable, the Early
Separation Date, the Company will continue your participation and that
of your spouse and dependent children to the extent that they are
qualified beneficiaries under the federal law known as "COBRA" (your
"qualified beneficiaries") in its group health and dental plans, as in
effect from time to time, until the earlier of the date you become
Medicare eligible or the date you otherwise cease to be eligible for
coverage under the plans. During your participation in the Company's
group health and dental plans, the Company will contribute to the
premium cost of your participation and that of your qualified
beneficiaries at the same rate that it contributes for its active
employees and their
qualified beneficiaries. In the event that you cease to be eligible to
participate in the Company's group health and dental plans prior to
becoming Medicare eligible, then, from that date through the date on
which you become Medicare eligible, the Company shall provide
alternative health and dental coverage for you on terms as comparable
to Company group health and dental plans in which you had been
participating as is reasonably available and shall contribute toward
the premium cost of that coverage the difference between the premium
cost and the contribution made by active employees toward the premium
cost of the Company's group health and/or dental plans (as applicable).
In order to be eligible for the Company's contributions hereunder,
however, you must pay, from month to month in advance, by the date
specified by the Company, an amount equal to the contribution toward
the premium cost of coverage paid by active full-time employees
generally. Coverage under the Company's group health and dental plans
to which you and your qualified beneficiaries are entitled under COBRA
shall run concurrently with your coverage hereunder.
d) Following the Resignation Date or, if applicable, the Early
Separation Date, the Company will continue your participation in its
employee health and welfare plans (exclusive of its health and dental
plans, for which provision is made in subsection (c) directly above) in
which you are a participant on the Resignation Date, as in effect from
time to time, (the "Welfare Plans"), on the same terms applicable to
employees in positions comparable to that which you held immediately
prior to the Effective Date of this Agreement, until the earlier of
December 31, 2002 or the date you otherwise cease to be eligible for
coverage under the Welfare Plans. In the event that you cease to be
eligible to participate in any of the Welfare Plans prior to December
31, 2002, then, from that date until December 31, 2002, Company will
provide you, at its cost, alternative coverage on terms as comparable
as is reasonably available to those of the applicable Welfare Plan, as
then effect.
e) Following the Resignation Date or, if applicable, the Early
Separation Date, until December 31, 2002, you shall be entitled to
participate in the Company's financial planning program for executives
on the same terms applicable to other participants and the Company
shall continue to pay the cost of your membership in the athletic club
in which you held membership on the Effective Date of this Agreement.
f) For the purpose of determining the number of shares of Holdings
Common Stock which become exercisable and the number of phantom shares
of Holdings Common Stock which shall be awarded and vested in
accordance with clause (iv) of Section 5 (and for no other purpose),
your employment shall be deemed to have continued through the last day
of the Company's 2001 Fiscal Year and, if so required for vesting for
the 2001 Fiscal Year, through April 1, 2002 (the "Fiscal 2001 Release
Date").
g) The Company will provide you outplacement services through an
outplacement firm selected by you, to a maximum cost to the Company for
such services of Twenty-Three
Thousand Dollars ($23,000). Payment will be made by the Company
directly to the outplacement firm upon invoicing.
h) The Company will reimburse up to Five Thousand Dollars ($5000) of
legal fees and expenses incurred by you incident to the legal review
and negotiation of this Agreement.
In order to be eligible for the payments and other benefits set forth in this
Paragraph 3, however, you must also sign, no earlier than the day following the
Resignation Date or, if applicable, the Early Separation Date, and no later than
twenty-two days thereafter, the release of claims included with this Agreement
and marked "Attachment A" (the "Release of Claims") and, having signed the
Release of Claims, you must not revoke it in a timely manner thereafter.
4. As of the Effective Date, subsection A and subsection D (ii) of
Section VIII of the Employment Agreement shall be of no further force or effect.
If your employment with the Company is terminated other than by reason of your
resignation on January 1, 2002, that termination will be governed, as
applicable, by Section VII or subsection B, C or D of Section VIII of the
Employment Agreement, as amended hereby; provided, however, that if the Company
terminates your employment prior to January 1, 2002 other than for death,
disability or Cause, Paragraph 3 of this Agreement shall apply.
5. Pursuant to the rights of Holdings under Section 4.1 of the
Stockholders Agreement dated as of September 23, 1999 by and among you, the
Company, Holdings, Xxxxxxx Holdings, LLC, the parties listed on Exhibit A
thereto and State Street Bank & Trust Company, solely as trustee of the Xxxxxxx
Company Employee Stock Ownership Trust, (the "1999 Stockholders' Agreement"),
Holdings will repurchase and you will sell and deliver the stock certificates
for:
(i) 140,181 shares (the "Shares") of the common stock of
Holdings ("Holdings Common Stock") held by you at a price per
share of $9.05;
(ii) 76,731 shares of Holdings Common Stock that may be
purchased on the exercise of the options (the "Options")
issued to you pursuant to the Stock Option Agreements between
you and Holdings dated as of October 29, 1998, September 23,
1999 and November 17, 2000 (collectively, the "Stock Option
Agreements") at a price per share equal to $9.05 less the
applicable exercise price per share;
(iii) 18,859.867696 phantom shares of Holdings Common Stock
(previously awarded to you under the Company's Phantom ESOP
Plan for senior management) at a price per share of $9.05; and
(iv) the number of shares, if any, of Holdings Common Stock
that are not exercisable on the date of this letter, first
written above, but that become exercisable as of the date your
employment with the Company terminates, which number shall
determined in accordance with the Stock Option Agreements, at
a price per share equal to $9.05 less the
applicable exercise price per share, and the number of phantom
shares, if any, of Holdings Common Stock that are not vested
as of the date of this letter, first written above, but that
are vested as of the date your employment the Company
terminates, which number shall be determined in accordance
with the Company's Phantom ESOP Plan for senior management at
a price per share of $9.05.
a) The aggregate repurchase amount under subparagraph (i) above shall
be $1,268,638 (the "Stock Repurchase Amount") and under subparagraphs
(ii) and (iii) above together shall be $557,049.29 (together, the
"Remuneration Amount" and, with (i), the "Repurchase Amounts"). You
hereby agree that, except as set forth in subparagraph (iv) above, no
options to purchase stock of Holdings held by you will have vested as
of the date your employment terminates and that all unvested options
shall be cancelled as of that date.
b) The Repurchase Amounts will be payable to you by Holdings pursuant
to two (2) promissory notes. The note for the Stock Repurchase Amount
shall be in the form attached hereto as Exhibit A (the "Stock Note")
and the note for the Remuneration Amount shall be in the form attached
hereto as Exhibit B (the "Remuneration Note" and, with the Stock Note,
the "Two Notes"). The Two Notes shall be issued to you by Holdings
within ten business days following the date your employment terminates,
provided that you have complied with your obligations as set forth in
Paragraph 5 (c) immediately hereafter.
c) You will deliver to Xxxxxxx X. Xxxxx at the Company, no later than
the fifth business day immediately following the later of the date your
employment with the Company terminates or December 31, 2001, (A) the
stock certificate representing the Shares, together with the enclosed
stock transfer power, and (B) all stock option certificates held by
you.
d) The Two Notes will bear interest from the date your employment
terminates, computed on the basis of a 365-day year, on the principal
amount from time to time unpaid, at a per annum rate equal to eight
percent (8%).
e) The first installment payment (the "First Installment"), in the
amount of twenty-five percent of the total principal of the Two Notes,
plus accrued interest, will be made to you within thirty (30) days
following the later of the date your employment terminates or December
31, 2001, provided that you have made delivery as required in Paragraph
5(c) above, and the remainder of such principal, plus accrued interest,
shall be payable in three equal annual installments over the three year
period commencing on the day immediately following the date your
employment terminates or, if later, January 1, 2002. Principal payments
shall first be applied to the Stock Note until paid in full and then to
the Remuneration Note.
f) The aggregate repurchase amount under subparagraph (iv) above shall
be determined within five business days following the Fiscal 2001
Release Date (the "2001 Repurchase Amount"). The 2001 Repurchase Amount
will be payable to you by Holdings pursuant to a promissory note (the
"2001 Note" and, together with the Two Notes, the "Three Notes") issued
to you by Holdings within ten business days following the Fiscal 2001
Release Date (provided you have complied with your delivery obligations
above). The 2001 Note shall be in the form attached hereto as Exhibit
C. The 2001 Note will bear interest from the Fiscal 2001 Release Date,
computed on the basis of a 365-day year, on the principal amount from
time to time unpaid, at a per annum rate equal to eight percent (8%),
and will be payable over three years following the Fiscal 2001 Release
Date.
g) All unpaid amounts of principal and interest owed to you pursuant to
the Notes will accelerate, and full payment of such amounts will be
made to you, upon the occurrence of (1) a Change of Control (as defined
below) or (2) an Initial Public Offering (as defined below).
h) Notwithstanding anything to the contrary contained in this
Agreement, the obligations of Holdings and/or the Company to make
payments under this Paragraph 5, including without limitation under
clauses (e), (f) and (g), immediately above, are subject to the
limitations of the senior credit agreement and the indenture governing
the senior subordinated notes of the Company and, in the event such
payments cannot be made, due to said limitations, Holdings and/or the
Company will make such payments as they reasonably determine are
consistent with such limitations. The Company intends to make good
faith efforts to obtain necessary approvals from the applicable lending
institutions to permit it to make payments on outstanding notes to
former employees generally. Holdings and the Company each reserves the
right to prepay some or all of the amounts due under the Three Notes at
any time without penalty.
i) The following definitions shall apply:
"Change of Control" means a transaction or series of related
transactions which results in a bona fide, unaffiliated change of
beneficial ownership of the Company of greater than 50% (disregarding
for this purpose any disparate voting rights attributable to the
outstanding stock of Holdings), whether pursuant to the sale of the
stock of Holdings or the Company, the sale of the assets of the
Company, or a merger or consolidation involving Holdings or the
Company.
"Initial Public Offering" means the effectiveness of a registration
statement under the Securities Act of 1933, as amended, covering any of
the capital stock of Holdings or the Company (other than preferred
stock that is not convertible into common stock) and the completion of
a sale of such stock thereunder, if as a result of such sale (i)
Holdings or the Company becomes a reporting company under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, and (ii)
such stock is traded on the New York Stock Exchange or the American
Stock Exchange, or is quoted on the Nasdaq Stock Market or is traded on
any other national stock exchange or securities system.
6. All obligations and payments by the Company or Holdings under this
Agreement will be joint and several obligations of the Company and Holdings. All
payments by the Company or Holdings under this Agreement will be reduced by all
taxes and other amounts that the Company or Holdings, as applicable, is required
to withhold under applicable law.
7. You agree that the payments provided under Paragraph 1 of this
Agreement are in complete satisfaction of any and all compensation due to you
from the Company through the date your employment with the Company terminates.
You further agree that, except as expressly provided in this Agreement or in
Section VII, Section VIII.B, Section VIII.C or Section VIII.D of the Employment
Agreement, as applicable, no further compensation is owed to you after the date
your employment terminates. Except as expressly provided in Paragraphs 3(c)
through 3(f) hereof, your participation in all employee benefit plans and
programs of the Company will terminate on the date your employment terminates,
in accordance with the terms of those plans and programs. You shall retain any
rights under any Company benefit plan which have vested as of the date your
employment terminates in accordance with the terms of the applicable benefit
plan.
8. You agree that you will not disclose this Agreement or any of its
terms or provisions, directly or by implication, except to members of your
immediate family and to your legal and tax advisors, and then only on condition
that they agree not to further disclose this Agreement or any of its terms or
provisions to others.
9. You agree that, during your employment and thereafter, you will not,
directly or indirectly, in any public communication, disparage the Company or
its Affiliates, their business or management. The Company agrees that none of
its statutory officers, speaking on behalf of the Company, shall disparage you
in any public communication.
10. In signing this Agreement, you give the Company assurance that you
will return to the Company, on the date your employment with the Company
terminates or on such earlier date or dates as the Company may specify, any and
all documents, materials and information related to the business, whether
present or otherwise, of the Company and its Affiliates, and all keys and other
property of the Company and its Affiliates in your possession or control. When
your employment with the Company has terminated, you agree that you will not,
for any purpose, attempt to access or use any computer or computer network or
system of the Company or any of its Affiliates.
11. You agree to cooperate with the Company and Holdings hereafter with
respect to all matters arising during or related to your employment, including
but not limited to all matters in connection with any governmental
investigation, litigation or regulatory or other proceeding which may have
arisen or which may arise following the signing of this Agreement. The Company
will reimburse your out of pocket expenses incurred in providing any such
requested cooperation, provided those expenses have been authorized in advance
by the Chairman and Chief Executive Officer of the Company or his designee.
Section X of the Employment Agreement shall survive both the Effective
Date of this Agreement and the Resignation Date and shall continue in full force
and effect in accordance with its terms.
12. During your employment under this Agreement, the following shall
apply:
a) You will not be responsible for the Human Resources
department (and the Company acknowledges that you have not had such
responsibility since the Effective Date).
b) You will assist in the negotiations of six labor contracts
with the United States Steel Workers of America and one labor contract with the
International Association of Machinists, will help coordinate those negotiations
and will conduct or participate in those negotiations as requested. In this
effort, you will work with Xxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxx and Xxx
Xxxxxx.
c) You will promptly pass all files and projects in which you
have been involved to Xxxxx Xxxxxx.
d) You will be provided with an office and secretarial
assistance during the period ending October 15, 2001 or until completion of the
labor contract negotiations described above, whichever shall occur later (but
not beyond the Resignation Date).
e) You will continue to be reimbursed for necessary and
reasonable business expenses incurred in performing your duties hereunder in
accordance with Company policies applicable to its executives generally, as in
effect from time to time. During your employment hereunder and thereafter, you
will not otherwise attempt to make any commitments on behalf of the Company or
any of its Affiliates, to charge any expense to the Company or any of its
Affiliates, or to pledge their credit without the express prior approval of the
Chairman and Chief Executive Officer of the Company or his designee.
f) You will be expected to attend meetings and negotiating
sessions, as scheduled from time to time, but you will not otherwise be held to
any specific number of working hours or working days in the office, so long as
you are making good faith efforts to perform the duties listed in this Paragraph
12. When necessary and practicable, the Company will give you notice in advance,
whether orally or in writing, at its option, of meetings and negotiating
sessions which you are expected to attend.
13. As used in this Agreement, the term "Affiliates" means any and all
persons and entities directly or indirectly controlling, controlled by or under
common control with the Company, where control may be by management authority or
equity interest, including without limitations Holdings.
14. This Agreement contains the entire agreement of the Company and
Holdings with you and replaces all prior and contemporaneous agreements,
communications and understandings, whether written or oral, with respect to your
employment and its termination and all related matters, excluding only those
provisions of the Employment Agreement whose survival is expressly provided for
in this
Agreement, including without limitation Section IX and X thereof, and such other
provisions of the Employment Agreement as are necessary or desirable for the
enforcement of Section IX or Section X, and all of your obligations with respect
to the securities of Holdings and the Company, all of which shall remain in full
force and effect in accordance with their terms. This Agreement will be governed
by and interpreted in accordance with the laws of the State of Georgia, without
regard to the conflict of laws principles thereof.
15. In signing this Agreement, you give the Company assurance that you
have signed it voluntarily and with a full understanding of its terms; that you
have had sufficient opportunity to consider this Agreement and to consult with
any of those persons described in Paragraph 8 above before signing it; and that,
in signing this Agreement, you have not relied on any promises or
representations, express or implied, which are not set forth expressly in this
Agreement.
If the terms of this Agreement are acceptable to you, please sign, date
and return it to me no later than October 18, 2001. The enclosed copy of this
Agreement, which you should also sign and date, is for your records.
Very truly yours,
XXXXXXX COMPANY
By_____________________________
Authorized Signatory
XXXXXXX HOLDINGS, INC.
By_____________________________
Authorized Signatory
Accepted and agreed:
Signature: ____________________________
Xxxxxx X. Xxxxxx
Date: ________________________________
ATTACHMENT A
RELEASE OF CLAIMS
FOR AND IN CONSIDERATION OF the special payments and benefits to be provided me
in connection with the termination of my employment as set forth in my agreement
with Xxxxxxx Company (the "Company") and Xxxxxxx Holdings, Inc. ("Holdings") of
October, 2001 (the "Agreement") I, on my own behalf and on behalf of my heirs,
executives, administrators, beneficiaries, representatives and assigns, and all
others connected with me, hereby release and forever discharge the Company and
its Affiliates (as that term is defined in the Agreement) and all of their
respective past, present and future officers, directors, shareholders, members,
managers, general and limited partners, employees, agents, joint venturers,
representatives, successors and assigns, and all others connected with any of
them, both individually and in their official capacities, from any and all
causes of action, rights and claims of any type or description which I have had
in the past, now have, or might now have, through the date of my signing of this
Release of Claims, in any way resulting from, arising out of or connected with
my employment by Company, Holdings or any of the Company's other Affiliates or
the termination of that employment or the ownership or sale of any securities of
the Company or Holdings or pursuant to any federal, state or local law,
regulation or other requirement, including without limitation Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, and the fair employment practices laws of the
state or states in which I have been employed by Company or any of its
Affiliates, each as amended from time to time. Excluded from the scope of this
Release of Claims are any rights I have under the Agreement which become due and
payable or otherwise arise after the effective date of this Release of Claims;
any rights I have under Section X of the employment agreement between me and the
Company dated as of June 29, 1998 and any right I have to indemnification under
the Articles of Incorporation or By-Laws of the Company or any of its
Affiliates.
In signing this Release of Claims, I acknowledge that I first received this
Release of Claims in connection with the negotiation of the Agreement in August
of 2001; that I may consider the terms of this Release of Claims for up to
twenty-one (21) days from the date my employment with the Company terminates
before signing, but that I may not sign this Release of Claims prior to the
termination of my employment; that I am encouraged by the Company and its
Affiliates to seek the advice of an attorney prior to signing this Release of
Claims; and that I am signing this Release of Claims voluntarily and with a full
understanding of its terms. I understand that I may revoke this Release of
Claims at any time within seven (7) days of the date of my signing by written
notice to the Chairman and Chief Executive Officer of the Company and that this
Release of Claims will take effect only upon the expiration of such seven-day
revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims under seal
as of the date written below.
Signature: ________________________________ Date Signed:___________________
Xxxxxx X. Xxxxxx
EXHIBIT A
(STOCK NOTE)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER THE ACT AND UNDER ANY SUCH APPLICABLE STATE LAWS.
PROMISSORY NOTE
$1,268,638.00 [ ],2001
FOR VALUE RECEIVED, the undersigned XXXXXXX HOLDINGS, INC., with an
address of: Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the
"COMPANY") hereby promises to pay in immediately available funds to Xxxxxx X.
Xxxxxx, with an address of: 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
(the "HOLDER"), on [ ], 2001, the principal sum of $1,268,638.00,
plus any accrued and unpaid interest then due. Section 5 of that certain
severance letter agreement between the Company and the Holder dated October 11,
2001, as applicable to the promissory note therein termed the "Stock Note," is
incorporated herein by express reference.
1. Payment.
1.1 PAYMENT AT MATURITY. If not prepaid earlier, on [ ], 200[ ]
(the "MATURITY DATE"), the Company will pay the entire principal amount of this
Note then outstanding, together with all accrued and unpaid interest thereon.
1.2 VOLUNTARY PREPAYMENTS. The Company may at any time prepay all or
any part of the principal amount of this Note then outstanding, together with
all accrued and unpaid interest thereon through the date of prepayment without
premium or penalty.
2. INTEREST. Simple interest on the principal amount hereof outstanding
from time to time shall accrue from [ ], 2001 at an annual interest rate
of 8% and shall be payable on the Maturity Date or accelerated maturity hereof
or upon any prepayment hereof. Such interest shall be computed on the basis of a
365-day year and the actual number of days elapsed.
3. DEFAULTS.
3.1 EVENTS OF DEFAULT. Upon the occurrence of the following events of
default, all amounts of principal and accrued and unpaid interest under this
Note shall be automatically accelerated:
3.1.1 CHANGE OF CONTROL. A transaction or series of related
transactions shall occur which results in a bona fide, unaffiliated
change of beneficial ownership of Xxxxxxx Company ("XXXXXXX") or its
business of greater than 50% (disregarding for this purpose any
disparate voting rights attributable to the outstanding stock of the
Company), whether pursuant to the sale of the stock of the Company or
Xxxxxxx, the sale of assets of Xxxxxxx or a merger or consolidation
involving the Company or Xxxxxxx; or
3.1.2 INITIAL PUBLIC OFFERING. There shall occur the effectiveness of a
registration statement under the Act covering any of the capital stock of the
Company or Xxxxxxx (other than preferred stock that is not convertible into
common stock) and the completion of a sale of such stock thereunder, if as a
result of such sale (i) the Company or Xxxxxxx becomes a reporting company under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and
(ii) such stock is traded on the New York Stock Exchange or the American Stock
Exchange, or is quoted on the Nasdaq Stock Market or is traded or quoted on any
other national stock exchange or securities system;
PROVIDED, HOWEVER, that the Company's obligation to pay amounts due as a result
of the events of default in this Section 3.1 is subject to the limitations of
the senior credit agreement and the indenture governing the senior subordinated
notes of Xxxxxxx Company and, in the event such payments cannot be made, due to
said limitations, the Company will make such payments as it reasonably
determines are consistent with such limitations.
4. NOTICE. Unless otherwise designated by the Holder to the Company in
writing, all notices to the Holder shall be made to him in writing at the
address above. Unless otherwise designated by the Company to the Holder in
writing, all notices to the Company shall be made to the Company at the address
above.
5. GENERAL. The parties hereto, including the Company, hereby waive
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Note and assent to extensions of the time of payment, or forbearance or other
indulgence without notice. The Company agrees to pay all costs and expenses,
including reasonable attorneys' fees, incurred in connection with the collection
and enforcement of this Note. This Note shall be governed by and construed in
accordance with the laws (other than the conflict of laws rules) of the State of
Georgia.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Company as of the date first written above.
XXXXXXX HOLDINGS, INC.
By: _________________________
Xxxx X. Xxxxxxxx
Vice President
EXHIBIT B
(REMUNERATION NOTE)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER THE ACT AND UNDER ANY SUCH APPLICABLE STATE LAWS.
PROMISSORY NOTE
$557,049.29.00 [ ], 200[ ]
FOR VALUE RECEIVED, the undersigned XXXXXXX HOLDINGS, INC., with an
address of: Xxx Xxxxxxxxx Xxxxxxx, Xxxxx. 000, Xxxxxxx, Xxxxxxx 00000 (the
"COMPANY") hereby promises to pay in immediately available funds to Xxxxxx X.
Xxxxxx, with an address of: 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000 (the
"HOLDER"), on [ ], 200[ ], the principal sum of $557,049.29, plus any
accrued and unpaid interest then due. Section 5 of that certain severance letter
agreement between the Company and the Holder dated October 11, 2001, as
applicable to the promissory note therein termed the "Remuneration Note," is
incorporated herein by express reference.
1. Payment.
1.1 PAYMENT AT MATURITY. If not prepaid earlier, on [ ], 200[ ]
(the "MATURITY DATE"), the Company will pay the entire principal amount of this
Note then outstanding, together with all accrued and unpaid interest thereon.
1.2 VOLUNTARY PREPAYMENTS. The Company may at any time prepay all or
any part of the principal amount of this Note then outstanding, together with
all accrued and unpaid interest thereon through the date of prepayment without
premium or penalty.
2. INTEREST. Simple interest on the principal amount hereof outstanding from
time to time shall accrue from [ ], 200[ ] at an annual interest rate of 8%
and shall be payable on the Maturity Date or accelerated maturity hereof or upon
any prepayment hereof. Such interest shall be computed on the basis of a 365-day
year and the actual number of days elapsed.
3. DEFAULTS.
3.1 EVENTS OF DEFAULT. Upon the occurrence of the following events of
default, all amounts of principal and accrued and unpaid interest under this
Note shall be automatically accelerated:
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3.1.1 CHANGE OF CONTROL. A transaction or series of related
transactions shall occur which results in a bona fide, unaffiliated
change of beneficial ownership of Xxxxxxx Company ("XXXXXXX") or its
business of greater than 50% (disregarding for this purpose any
disparate voting rights attributable to the outstanding stock of the
Company), whether pursuant to the sale of the stock of the Company or
Xxxxxxx, the sale of assets of Xxxxxxx or a merger or consolidation
involving the Company or Xxxxxxx; or
3.1.2 INITIAL PUBLIC OFFERING. There shall occur the
effectiveness of a registration statement under the Act covering any of
the capital stock of the Company or Xxxxxxx (other than preferred stock
that is not convertible into common stock) and the completion of a sale
of such stock thereunder, if as a result of such sale (i) the Company
or Xxxxxxx becomes a reporting company under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, and (ii) such stock is
traded on the New York Stock Exchange or the American Stock Exchange,
or is quoted on the Nasdaq Stock Market or is traded or quoted on any
other national stock exchange or securities system;
PROVIDED, HOWEVER, that the Company's obligation to pay amounts due as a result
of the events of default in this Section 3.1 is subject to the limitations of
the senior credit agreement and the indenture governing the senior subordinated
notes of Xxxxxxx Company and, in the event such payments cannot be made, due to
said limitations, the Company will make such payments as it reasonably
determines are consistent with such limitations.
4. NOTICE. Unless otherwise designated by the Holder to the Company in writing,
all notices to the Holder shall be made to him in writing at the address above.
Unless otherwise designated by the Company to the Holder in writing, all notices
to the Company shall be made to the Company at the address above.
5. GENERAL. The parties hereto, including the Company, hereby waive presentment,
demand, notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note and assent to
extensions of the time of payment, or forbearance or other indulgence without
notice. The Company agrees to pay all costs and expenses, including reasonable
attorneys' fees, incurred in connection with the collection and enforcement of
this Note. This Note shall be governed by and construed in accordance with the
laws (other than the conflict of laws rules) of the State of Georgia.
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IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Company as of the date first written above.
XXXXXXX HOLDINGS, INC.
By: _________________________
Xxxx X. Xxxxxxxx
Vice President
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EXHIBIT C
(2001 NOTE)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER THE ACT AND UNDER ANY SUCH APPLICABLE STATE LAWS.
PROMISSORY NOTE
$[ ].00 [ ], 200[ ]
FOR VALUE RECEIVED, the undersigned XXXXXXX HOLDINGS, INC., with an
address of: Xxx Xxxxxxxxx Xxxxxxx, Xxxxx. 000, Xxxxxxx, Xxxxxxx 00000 (together,
the "COMPANY") hereby promises to pay in immediately available funds to Xxxxxx
X. Xxxxxx, with an address of: 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
(the "HOLDER"), on [ ], 200[ ], the principal sum of $[ ], plus any accrued and
unpaid interest then due. Section 5 of that certain severance letter agreement
between the Company and the Holder dated October 11, 2001, as applicable to the
promissory note therein termed the "2001 Note," is incorporated herein by
express reference.
1. Payment.
1.1 PAYMENT AT MATURITY. If not prepaid earlier, on [ ], 200[ ] (the
"MATURITY DATE"), the Company will pay the entire principal amount of this Note
then outstanding, together with all accrued and unpaid interest thereon.
1.2 VOLUNTARY PREPAYMENTS. The Company may at any time prepay all or
any part of the principal amount of this Note then outstanding, together with
all accrued and unpaid interest thereon through the date of prepayment without
premium or penalty.
2. INTEREST. Simple interest on the principal amount hereof outstanding from
time to time shall accrue from [ ], 200[ ] at an annual interest rate of
8% and shall be payable on the Maturity Date or accelerated maturity hereof or
upon any prepayment hereof. Such interest shall be computed on the basis of a
365-day year and the actual number of days elapsed.
3. DEFAULTS.
3.1 EVENTS OF DEFAULT. Upon the occurrence of the following events of
default, all amounts of principal and accrued and unpaid interest under this
Note shall be automatically accelerated:
3.1.1 CHANGE OF CONTROL. A transaction or series of related
transactions shall occur which results in a bona fide, unaffiliated
change of beneficial ownership of Xxxxxxx Company ("XXXXXXX") or its
business of greater than 50% (disregarding for this purpose any
disparate
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voting rights attributable to the outstanding stock of the Company),
whether pursuant to the sale of the stock of the Company or Xxxxxxx,
the sale of assets of Xxxxxxx or a merger or consolidation involving
the Company or Xxxxxxx; or
3.1.2 INITIAL PUBLIC OFFERING. There shall occur the
effectiveness of a registration statement under the Act covering any of
the capital stock of the Company or Xxxxxxx (other than preferred stock
that is not convertible into common stock) and the completion of a sale
of such stock thereunder, if as a result of such sale (i) the Company
or Xxxxxxx becomes a reporting company under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, and (ii) such stock is
traded on the New York Stock Exchange or the American Stock Exchange,
or is quoted on the Nasdaq Stock Market or is traded or quoted on any
other national stock exchange or securities system;
PROVIDED, HOWEVER, that the Company's obligation to pay amounts due as a result
of the events of default in this Section 3.1 is subject to the limitations of
the senior credit agreement and the indenture governing the senior subordinated
notes of Xxxxxxx Company and, in the event such payments cannot be made, due to
said limitations, the Company will make such payments as it reasonably
determines are consistent with such limitations.
4. NOTICE. Unless otherwise designated by the Holder to the Company in writing,
all notices to the Holder shall be made to him in writing at the address above.
Unless otherwise designated by the Company to the Holder in writing, all notices
to the Company shall be made to the Company at the address above.
5. GENERAL. The parties hereto, including the Company, hereby waive presentment,
demand, notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note and assent to
extensions of the time of payment, or forbearance or other indulgence without
notice. This Note shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of the State of Georgia.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Company as of the date first written above.
XXXXXXX HOLDINGS, INC.
By: _________________________
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