EXHIBIT 10.1(1)
RESTATED AND AMENDED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Restated Agreement")
is made as of August 14, 1996 by Xxxxxxx & Xxxxx, Incorporated, a Missouri
corporation (the "Company"), and Xxxxx X. Xxxxxxx, Xx. (the "Executive").
RECITALS
A. This Restated Agreement amends and restates in its entirety the Employment
Agreement between the Company and the Executive dated May 9, 1979, as
previously amended, supplemented or clarified (the "Employment Agreement").
B. This Restated Agreement eliminates certain provisions of the Employment
Agreement which have become inapplicable due to the passage of time, and
integrates the Employment Agreement and all prior supplements or amendments
into a single comprehensive document.
C. The Executive has been employed by the Company since 1950 and has served as
its President, Chief Executive Officer and/or Chairman of the Board of
Directors since 1960. Over this period the Executive's services have
contributed materially to the successful operation of the Company's
businesses.
D. The Company desires that the Executive remain in the employment of the
Company. Accordingly, the Compensation Committee (the "Compensation
Committee") of the Board of Directors of the Company (the "Board") has
recommended the execution of this Restated Agreement and the Board has
authorized the execution of the same.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the Company and the
Executive do restate and agree as follows:
1. Employment
The Company hereby reaffirms its employment of the Executive as its
Chairman of the Board and Chief Executive Officer, and the Executive hereby
confirms his employment in that capacity.
The Executive's employment under this Restated Agreement is subject to the
terms and conditions set out below and will be carried out in Carthage,
Missouri, at the Company's principal executive offices. However, the Executive
acknowledges that the nature of his
employment may require reasonable domestic and international travel from time to
time.
2. Term
2.1 Term
The term of this Restated Agreement commenced on May 9, 1979 and shall end
on December 31, 1998, unless terminated earlier in accordance with the
provisions of this Restated Agreement.
2.2 Early Termination
The term of this Restated Agreement may be terminated prior to expiration
by reason of any of the following:
(a) by the Executive (but not the Company) upon six (6) months prior
written notice;
(b) in accordance with the Severance Benefit Agreement between the Company
and the Executive dated as of May 9, 1984, as amended from time to
time (the "Severance Benefit Agreement"), a copy of which is attached
as Exhibit A for information purposes only;
(c) by the Executive's death;
(d) in accordance with Section 7 hereof, upon the Executive's Total
Disability (as hereinafter defined);
(e) by the Executive pursuant to Section 8 hereof;
(f) by the Company pursuant to Section 10 hereof; or
(g) for other causes as provided below.
3. Duties and Authority
The Executive shall devote his full business time to the affairs of the
Company. However, this shall not be deemed to prevent the Executive from
devoting such time (which shall not be substantial in the aggregate) to personal
business interests that do not unreasonably interfere with the performance of
the Executive's duties hereunder.
The Executive shall use his best efforts, skills and abilities to promote
the Company's interests, shall serve as Chief Executive Officer of the Company,
Chairman of the Board (if so elected by the Board), and a director (if so
elected by the stockholders of the
2
Company), and shall perform such duties consistent with his status as Chairman
of the Board and Chief Executive Officer as may be assigned to him by the Board.
The direction and control exercised by the Board over the Executive shall
be such as is customarily exercised by a board of directors over a chairman of
the board and chief executive officer.
4. Compensation
4.1 Base Salary
On the Date of this Restated Agreement, the Executive is being paid a base
salary at an annual rate of $575,000. On or before April 15, 1997 and on or
before April 15 of each successive year during the term of Executive's active
performance of duties as Chief Executive Officer of the Company hereunder, the
Compensation Committee of the Board shall appraise the Executive's performance
during the previous calendar year, taking into account such factors as it deems
appropriate. As a result of such appraisal, the then annual base salary of the
Executive may be increased (but shall not be decreased) by such amount as the
Compensation Committee determines is fair, just and equitable; provided,
however, the percentage increase in the Executive's base salary shall always be
at least equal to the then latest percentage increase over the previous year in
the aggregate annual base salaries of the Company's five highest paid executive
officers other than the Executive. In computing this percentage increase, the
Compensation Committee shall disregard that part of any base salary increase
attributable in the Committee's reasonable judgment to additional
responsibilities assumed or to be assumed by any of such five highest paid
executive officers. Further, in computing the percentage increase, the
Compensation Committee shall make equitable adjustments in its computations so
that the Executive will not be prejudiced by any reduction in the
responsibilities of any of such five highest paid executive officers implemented
during the immediately preceding year or to be implemented in the immediately
following year.
The Executive's base salary shall be paid in equal bi-weekly installments.
All salary increases under this section will be made as of the beginning of
the first payroll period immediately following the appraisal in question.
4.2 Annual Cash Bonus
For the year 1996, and each succeeding year during the term of this
Agreement, the Executive shall be entitled to earn a cash bonus computed in
accordance with such Incentive Compensation Plan guidelines as are approved by
the Compensation Committee for such year. The Compensation Committee shall be
entitled to amend or supplement the guidelines from time to time whenever the
Committee deems this to be in the best interests of the stockholders of the
Company.
3
If the Executive's employment under this Restated Agreement is terminated
before December 31 of any year during the term hereof, the Executive shall be
entitled to a prorated bonus for the year of termination. This prorated bonus
shall bear the same ratio to the minimum bonus the Executive would have earned
with respect to the year under the Incentive Compensation Plan as the number of
days this Restated Agreement is in force during such year bears to 365.
4.3 Vacations: Other Benefits
The Executive shall be entitled to a reasonable annual vacation (not less
than an aggregate of four weeks in any calendar year) with full pay, benefits
and allowances.
In addition to the salary, bonus and other payments to be made under this
Restated Agreement, the Executive shall be entitled to participate (to the
extent legally permitted) in any insurance, pension, profit sharing, stock
bonus, stock option, stock purchase or other benefit plan of the Company now
existing or hereafter adopted for the benefit of executive officers of the
Company or the employees of the Company generally.
At the Company's expense, the Company shall provide office space,
secretarial assistance, supplies and equipment fully adequate to enable the
Executive to perform the services of Chief Executive Officer of the Company
contemplated by this Restated Agreement and at least comparable to that being
provided to the Executive on the date hereof.
The Company shall provide the Executive with appropriate perquisites at
least comparable to those provided to the Executive on the date hereof and, in
all events, equal to such perquisites as may be made available from time to time
to the Company's other executive officers.
In addition to the payments provided for in this Section 4 and elsewhere in
this Restated Agreement, the Company may from time to time pay the Executive as
a salary increase, a bonus or otherwise, such additional amounts as the
Compensation Committee of the Board shall, in its discretion, determine.
Except as may be provided otherwise in this Restated Agreement or to the
extent required by law, no benefits referred to in this section or provided for
in other sections of this Restated Agreement shall be reduced by the Company as
to the Executive without first securing his consent to the same except.
5. Expenses
The Company shall pay or reimburse the Executive for all
transportation, hotel, living and related expenses incurred by the Executive on
business trips away from the Company's
4
principal office and for all other business and entertainment expenses
reasonably incurred by him in connection with the business of the Company and
its subsidiaries or affiliates.
6. Pension
6.1 Obligation to Make Pension Payments
When Executive's employment is hereafter terminated for any reason
whatsoever, including Total Disability or death, the Company shall make cash
payments to the Executive herein the "Pension Payments") as provided in this
section 6.
6.2 Commencement and Duration of Pension Payments
The Pension Payments shall begin on the first day of the first month
immediately following the Executive's termination of employment. All Pension
Payments shall be made in equal monthly installments and once commenced shall
continue during the life of the Executive. If the Executive dies before Pension
Payments begin or within 15 years from the first monthly Pension Payment, then
the monthly Pension Payments shall thereafter be made during the remainder of
the 15 year period to the Executive's Designee (as hereinafter defined).
The Executive's "Designee" shall be Xxx X. Xxxxxxx or such other person or
other legal entity designated by the Executive to the Company after the date
hereof. The Executive may change the Designee from time to time by an amending
designation to the Company. In the absence of a valid designation, or if the
Designee dies before the Executive, then the Designee shall be deemed to be the
estate of the Executive.
6.3 Amount of Annual Pension Payments
The Executive's annual Pension Payments shall be the following percentage
of the Executive's Five Year Average Compensation:
------------------------------------------------------------------
If Termination of Employment
is after October 4 Percentage
------------------------------------------------------------------
1995 62
------------------------------------------------------------------
1996 63
------------------------------------------------------------------
1997 64
------------------------------------------------------------------
1998 65
------------------------------------------------------------------
"Five Year Average Compensation" as used in this Agreement shall be
computed by dividing 5 into the highest amount of total compensation accrued by
the Company with respect to the Executive for services rendered by the Executive
in any period of five consecutive calendar years before 1999 (which may include
the year of termination). Such
5
compensation shall include salaries, bonuses and special awards unless provided
otherwise below (whether in cash or in kind), but shall not include pensions,
retirement allowances, severance pay, fees under consulting contracts,
director's fees, distributions under Company benefit plans, the value of fringe
benefits and the like. Additionally, in computing Five Year Average Compensation
the following provisions shall apply:
(a) all salaries, bonuses and special awards shall be deemed "accrued"
with respect to a given year even though actually paid in a later
year, provided the same stem from the Executive's performance of
services during the given year (e.g., bonuses for the year 1995 paid
in February 1996, or any salary or bonus which the Executive elects to
defer until later years pursuant to the Company's Deferred
Compensation Program);
(b) if the Executive elects to receive stock options in lieu of salary or
bonus under the Company's Deferred Compensation Program or any other
plan the Company may hereafter adopt, the compensation "accrued" shall
be the amount of salary or bonus foregone;
(c) all stock and cash awards previously or hereafter issued to the
Executive under the Company's 1989 Flexible Stock Plan will be
excluded;
(d) all payments previously or hereafter made to the Executive to offset
the effect of tax law limitations on the Executive's participation in
the Xxxxxxx & Xxxxx Retirement Plan will be excluded; and
(e) all bonuses, awards and other payments made to the Executive (i) to
reimburse Executive for, or provide the Executive with funds to pay,
local, state and federal income taxes which become payable by the
Executive as a result of exercise of non-qualified stock options or
(ii) to induce the Executive to make, or to compensate Executive for
making, disqualifying dispositions of Company stock acquired in the
exercise of incentive stock options, will be excluded.
The annual Pension Payments under this section shall be reduced by all
amounts received by the Executive from primary Social Security, as well as
amounts paid to Executive under any disability income insurance policies which
are attributable to premiums paid by the Company (all such amounts being herein
referred to as "Pension Reduction Amounts").
6.4 Insurance During Retirement or Disability
-----------------------------------------
During the 15-year period following Executive's termination of
employment (or, if longer, until Executive's death), the Company will pay, or
arrange insurance coverages to pay, all of Executive's and his dependents'
medical and hospitalization expenses which are not covered by Medicare or other
government health insurance. However, the payments and
6
coverages provided by the Company will not exceed the payments and coverages
that Executive and his dependents would have received under the Company's
medical plan applicable to them immediately prior to termination of Executive's
employment. The Company will also reimburse the Executive and his dependents for
premiums they pay for Medicare and other government health insurance.
The Company will provide life insurance coverage to the Executive at least
equal to the coverage provided to him immediately prior to termination of his
employment.
The Company will pay to Executive and his dependents an amount sufficient
to pay income taxes on all amounts or benefits received under this Section 6.4
which are required to be included in income for tax purposes.
6.5 Conversion of Pension Payments into Options
-------------------------------------------
The Executive may elect to convert all or a portion of the present
value of his Pension Payments into Options at the times set out below and in
manner set out on Exhibit B:
(a) within 60 days before or after termination of Executive's
employment with the Company;
(b) within 90 days after a "Change in Control" (as defined in the
Severance Benefit Agreement);
(c) at any time if (i) the Company's price/earnings ratio, as
reported in the Wall Street Journal, is at least 14, (ii) such
ratio is at least 80% of the price/earnings ratio for the
Standard & Poor's 500 index, as also reported in the Wall Street
Journal and (iii) the Company's common stock is trading at a
price which is at least 85% of the 3-year high;
(d) at any time within three months after the Company has sold, for
its own account, its common stock in an underwritten, primary
public offering.
(e) at such other time or times either before or after termination of
employment as the Compensation Committee may, in its sole
discretion, agree with Executive.
"Option" means an option to purchase shares of the Company's common
stock, the general terms and conditions of which are set out on Exhibit B. The
formula for determining the number of Option shares is also set out on Exhibit
B.
The present value of the Pension Payments to be converted into
Options shall be determined by an independent actuary of the Company. The
discount rate applied by the
7
actuary shall be determined by the Chief Financial Officer using a rate equal to
the Company's cost of funds for obligations of similar duration.
The Executive shall exercise his election to convert all or a portion
of the Pension Payments into Options by delivering an election notice (the
"Election Notice") to the Compensation Committee. The Election Notice shall
designate the portion of Pension Payments to be converted into Options. Promptly
after receipt of the Election Notice, the Company shall deliver to Executive an
agreement evidencing the Company's obligations as respects the Options. The
agreement shall incorporate all of the terms and conditions of the Options set
out on Exhibit B and contain such additional terms and conditions determined by
the Compensation Committee as are consistent with Exhibit B and necessary to
implement Executive's election. Limitations or restrictions on the time of
election, purchase or sale of Company securities or other matters may be added
to the Option agreement to reduce the risk of violation of Section 16 of the
Securities Exchange Act of 1934.
Upon the grant of an Option, the Company's obligations to make all or
any part of the Pension Payments shall be extinguished to the extent such
Pension Payments were used as a basis for conversion into Options. Thus, for
example, if the Executive elected to convert all of his accrued Pension Payments
into Options on January 1, 1997, the number of Options received would be based
on 63% of his Five Year Average Compensation (see Section 6.3). If the annual
Pension Payments accrued were $600,000 at this time, the Company's obligation
for future annual Pension Payments would be extinguished to the extent of
$600,000. If the Executive continued to be employed until January 1, 1999 (i.e.,
when Pension Payments are based on 65% of Five Year Average Compensation) and
his annual Pension Payments would have been $700,000 at that time, he would
receive annual Pension Payments equal to $100,000 (i.e., $700,000 - $600,000)
over the pension period.
In no event shall the Company be required to issue Options under this
Section 6.5 if, under the tax laws then in force, such issuance or subsequent
exercise of the Options will result in materially increasing the Company's tax
liabilities when compared to making Pension Payments.
7. Disability
----------
7.1 Definition of "Total Disability"
-------------------------------
The Executive shall be deemed to have a "Total Disability" if he is
unable, for a continuous period of four or more months, to perform substantially
all of the material personal services to be rendered by him under this Restated
Agreement.
During the continuance of any Total Disability, the Board may elect to
relieve the Executive of all of his duties hereunder by Board resolution
delivered to the Executive, or the Executive may elect to cease performing all
of his duties hereunder by notice delivered to
8
the Company. Thereupon, Executive's duties and responsibilities as Chief
Executive Officer and Chairman of the Board under this Restated Agreement shall
cease 60 days following delivery of the Board resolution or the Executive's
notice, as the case may be; provided, however, that all other provisions of this
Restated Agreement, including the Executive's cash compensation and other
benefits, shall continue in full force until 14 months from the first day of the
four month or longer continuous period that culminated in the Total Disability
("Disability Termination Date"). If Executive continues to have a Total
Disability on the Disability Termination Date, his employment under this
Restated Agreement shall be terminated.
7.2 Offset Payments
---------------
The Company's obligation to continue the Executive's cash compensation
from the date of a Total Disability to the Disability Termination Date shall be
reduced by (a) all amounts paid to Executive under disability income insurance
policies made available to the Executive by the Company and (b) by all amounts
received by the Executive from Social Security disability benefits.
8. Executive's Option to Terminate Agreement
-----------------------------------------
Not later than six months after the occurrence of any of the following
events the Executive may elect to terminate his employment under this Restated
Agreement by sending notice of termination to the Company:
(a) The Executive shall not be elected and continue as director of
the Company, or Chief Executive Officer of the Company or a
Member of the Board's Executive Committee;
(b) The Company is merged or consolidated with another corporation
and the Company is not the survivor;
(c) The Company is dissolved;
(d) Substantially all of the assets of the Company are sold to any
other person;
9
(e) A public tender offer is made for the shares of the Company and
the offeror acquires at least 40% of the outstanding common
shares of the Company; or
(f) A proxy contest is waged and the person waging the contest
acquires working control of the Company.
The Executive's employment obligations under this Restated Agreement shall
terminate on the date of termination specified in the Executive's notice to the
Company, which date must be within 60 days of the date of the notice.
9. Consulting Agreement
--------------------
Upon the expiration of the term of this Restated Agreement or the
termination of the Executive's employment for any reason other than death, Total
Disability, or discharge for cause, either the Company or the Executive shall
have the option to arrange for the Executive to render consulting services to
the Company on the following terms and conditions:
(a) The party wishing to invoke the provisions of this section shall
send notice thereof to the other party within 120 days after
termination of employment.
(b) Beginning on the first day of the first month immediately
following the sending of the notice and continuing for a period
of two years thereafter, the Executive shall render such
consulting services to the Company as the Company may reasonably
request from time to time. Consulting services shall be limited
to the Executive's consideration, review and/or rendering of
advice regarding plans or ideas or specific limited questions or
problems proposed by the Company and consultation on any major
matters of policy affecting the Company, it being understood that
none of the foregoing is to generate substantial research,
traveling or deliberation time by the Executive.
(c) In consideration for the consulting services to be rendered by
the Executive, the Company shall pay the Executive during the
first and second years of consultation an amount equal to 100%
and 75%, respectively, of the total compensation ("Total
Compensation") accrued by the Company for services rendered by
the Executive during the calendar year immediately preceding the
Executive's termination of employment. Total Compensation shall
be computed in the manner described in Section 6.3.
(d) Consulting fees payable hereunder shall be paid each year in
twelve equal monthly installments payable on the first day of
each month in
10
advance. In addition, the Company shall promptly pay or reimburse
the Executive for all out-of-pocket costs incurred by him in
rendering consulting services under this section.
(e) All payments made under this section shall be in addition to any
Pension Payments or other payments made to the Executive under
this Restated Agreement.
(f) During the period Executive is rendering consulting services, he
shall be entitled to use the same office space and to receive
secretarial service which is at least equal to that received
immediately prior to his termination of full-time employment.
10. Termination by the Company
--------------------------
10.1 Termination For Cause
---------------------
The Company may terminate the Executive's employment pursuant to this
Restated Agreement by discharging the Executive for cause. The term "for cause"
shall be limited to the following events:
(a) The Executive's conviction of any crime involving money or other
property of the Company or any of its affiliates or of any other
crime (whether or not involving the Company or any of its
affiliates) that constitutes a felony in the jurisdiction
involved; or
(b) The Executive's continuing, repeated, willful violation of
specific written directions of the Board (or the board of any
affiliate of the company of which the Executive is an officer)
which directions are consistent with this Restated Agreement and
which violation continues following the Executive's receipt of
such written directions; or
(c) The Executive's continuing, repeated, willful failure to perform
his duties hereunder; provided, however, that no discharge shall
be deemed for cause under this subsection (c) unless the
Executive first receives written notice from the Board (or of the
board of any affiliate of the Company of which the Executive is
an officer) advising the Executive of the specific acts or
omissions alleged to constitute a failure to perform his duties,
and such failure continues after the Executive shall have had a
reasonable opportunity to correct the acts or omissions so
complained of.
In no event shall the alleged incompetence of the Executive in the
performance of his duties under this Restated Agreement be deemed grounds for
discharge for cause.
11
10.2 Termination Without Cause
-------------------------
The Board, at any time and without cause, may relieve the Executive of
his duties as Chief Executive Officer and Chairman of the Board of the Company
upon three months prior written notice to the Executive; provided that such
action by the Board pursuant to this Section 10.2 shall not be deemed a
termination of the Executive's employment and shall not relieve the Company of
any of its financial obligations to the Executive as set forth in this Restated
Agreement. Notwithstanding the foregoing sentence, if the Executive's duties are
terminated pursuant to this Section 10.2, the Executive's employment shall
thereafter be terminated upon the earlier of (i) Executive's death or (ii) the
Disability Termination Date (as defined in Section 7.1).
11. Confidential Information
------------------------
The Executive shall not at any time (whether during the term of this
Restated Agreement or thereafter) disclose to any person any confidential
information or trade secrets of the Company.
If any of the restrictions contained in this section or elsewhere in this
Restated Agreement shall be deemed unenforceable by reason of the extent,
duration, or geographical scope thereof or otherwise, then the Executive and the
Company contemplate that the appropriate court will reduce such extent,
duration, geographical scope or other provisions hereof, and enforce the
restrictions set out in this section and elsewhere in their reduced form for all
purposes in the manner contemplated hereby.
12. Nonassignability
----------------
The Restated Agreement and the benefits hereunder are personal to the
Company and are not assignable by it, provided, however, this Restated Agreement
and the benefits hereunder may be assigned by the Company to any person
acquiring all or substantially all of the assets of the Company or to any
corporation into which the Company may be merged or consolidated. In the event
of an assignment of this Restated Agreement to any person acquiring all or
substantially all of the assets of the Company or to any corporation into which
the Company may be merged or consolidated, the title, responsibilities and
duties assigned to the Executive by such successor person or corporation shall
be the title, responsibilities and duties of a senior executive officer of such
successor person or corporation.
The provisions of this Restated Agreement shall be binding on and inure to
the benefit of the Executive, his assignees, executors, and administrators.
13. Miscellaneous
-------------
12
13.1 Waivers
-------
No waiver by either party of any breach or nonperformance of any
provision of this Restated Agreement shall be deemed to be a waiver of any
preceding or succeeding breach or nonperformance of the same or any other
provision hereof.
13.2 Notices
-------
All notices, waivers, designations or other communications (herein
collectively "notices") that either party is required or permitted to give
hereunder shall be in writing and delivered as follows:
If to the Executive: If to the Company:
Xxxxx X. Xxxxxxx, Xx. Xxxxxxx & Xxxxx, Incorporated
0000 Xxxxxxxxxx Xxxxxxx No. 0 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
subject to the right of either party at any time to designate a different
location for the delivery of notices.
13.3 Survival of Provisions
----------------------
The provisions set out in Sections 6, 9 and 11 shall survive the
expiration or termination of this Restated Agreement, as shall all other
provisions hereof which provide for or contemplate performance by either the
Executive or the Company following the termination hereof.
By way of example, if Executive's employment is terminated after the
term of this Agreement (as defined in Section 2.1), then either he or the
Company shall have the option to arrange for Executive's consulting services as
described in Section 9.
13.4 Restatement
-----------
This Restated Agreement shall replace and supersede in the entirety
the Employment Agreement and all supplements, amendments or clarifications to
the Employment Agreement prior to date hereof.
13
13.5 Split Dollar Life Insurance
---------------------------
On June 4, 1963 and May 24, 1973, the Company and the Executive
entered into split dollar life insurance agreements (the "Split Dollar
Agreements") pertaining to policies on the life of the Executive in the amounts
of $100,000 and $200,000, respectively. The Split Dollar Agreements shall
continue in full force in accordance with their terms and shall not be affected
by this Restated Agreement.
IN WITNESS WHEREOF, the Company and the Executive have signed this
Restated Agreement as of the day and year first above written.
"EXECUTIVE" "COMPANY"
Xxxxxxx & Xxxxx, Incorporated
/s/XXXXX X. XXXXXXX XX. By: /s/ X.X. Xxxxxxxx
----------------------- Title: Senior Vice President
Xxxxx X. Xxxxxxx, Xx.
14
EXHIBIT A
---------
SEVERANCE BENEFIT AGREEMENT
---------------------------
Table of Contents
-----------------
1. Change in Control; Employment Agreement ............................................... 1
1.1 Change in Control ............................................................ 1
1.2 Employment Agreement ......................................................... 2
2. Termination of Employment Following a Change in Control ............................... 3
2.1 General ...................................................................... 3
2.2 Termination for Disability ................................................... 3
2.3 Termination by Company for "Cause" ........................................... 3
2.4 Termination by Executive for Good Reason ..................................... 4
2.5 Notice of Termination ........................................................ 6
2.6 Date of Termination .......................................................... 6
2.7 Prior Notice Required of Company Actions ..................................... 6
3. Benefits upon Termination of Employment ............................................... 6
3.1 General ...................................................................... 7
3.2 Base Salary Through Date of Termination; Previously Earned Bonus ............. 7
3.3 Pro-Rata Bonus for Year of Termination ....................................... 7
3.4 Monthly Severance Payments ................................................... 8
3.5 Fringe Benefits (General) .................................................... 8
3.6 Retirement Plans ............................................................. 8
3.7 Stock Options ................................................................ 9
3.8 Purchase of Company Car ...................................................... 9
3.9 Job Search Assistance; Legal Fees; etc. ...................................... 10
3.10 Repurchase of Company Shares Owned by Executive .............................. 10
3.11 Termination Which Does Not Require Payment of Termination Benefits ........... 10
4. New Employment; Reduction of Termination Benefits ..................................... 11
5. Voluntary Termination of Employment by Executive ...................................... 11
6. Termination of Employment Prior to Change in Control .................................. 12
7. Successor; Binding Agreement .......................................................... 12
8. Miscellaneous ......................................................................... 13
8.1. Notice ....................................................................... 13
8.2 No Waiver .................................................................... 13
8.3 Enforceability ............................................................... 14
8.4 Disputes ..................................................................... 14
8.5 Sections; Captions ........................................................... 14
8.6 Term of Agreement ..........................................14
8.7 No Right of Offset .........................................14
8.8 Successive Changes in Control ..............................15
8.9 Interpretation of Agreement ................................15
2
SEVERANCE BENEFIT AGREEMENT
---------------------------
This Severance Benefit Agreement (the "Agreement") is made as of May 9,
1984 by Xxxxxxx & Xxxxx, Incorporated, Xx. 0 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000 (the "Company") and Xxxxx X. Xxxxxxx, Xx. (the "Executive"), residing at
0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000.
RECITALS
--------
The Executive functions as President, Chairman of the Board and Chief
Executive Officer of the Company on the date hereof and is one of the key
employees of the Company.
The Company considers the maintenance of sound and vital management
essential to protecting and enhancing the best interests of the Company and its
shareholders. In this connection, the Company recognizes that in today's
business environment the possibility of a change in control of the Company may
exist in the future. The Company further recognizes that such possibility, and
the uncertainty which it may raise among key executives, could result in the
departure or distraction of key executives to the detriment of the Company and
its shareholders. Accordingly, the Board of Directors of the Company (the
"Board") has determined that appropriate steps should be taken (i) to further
induce the Executive to remain with the Company and (ii) to reinforce and
encourage the continued attention and dedication of the Executive to his
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company.
Now, Therefore, in consideration of the premises and for other good and
valuable considerations, receipt of which are hereby acknowledged, the Company
and the Executive do agree as follows:
1. Change in Control; Employment Agreement
1.1 Change in Control
The Company may be required to provide certain benefits to the
Executive under this Agreement following each and every "Change in Control" of
the Company.
A "Change in Control" of the Company shall be deemed to have occurred if:
(a) There is any change in control as contemplated by (i) Item 5(f) of
Schedule 14A, Regulation 14A, promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or (ii) Item 1
of Form 8-K promulgated by the Securities and Exchange Commission
under the Exchange Act; or
1
(b) Any "person" (as such term is used in Sections 13(d) and 1~(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act)) directly or indirectly of 25% or more
of the combined voting power of the Company's then outstanding voting
securities; or
(c) Those persons serving as directors of the Company on the date of this
Agreement (the "Original Directors") and/or their Successors do not
constitute a majority of the whole Board of Directors of the Company
(the term "Successors" shall mean those directors whose election or
nomination for election by the Company's shareholders has been
approved by the vote of at least two-thirds of the Original Directors
and previously qualified Successors serving as directors of the
Company at the time of such election or nomination for election); or
(d) The Company shall be a party to a merger or consolidation with another
corporation and as a result of such merger or consolidation, less than
75% of the outstanding voting securities of the surviving or resulting
corporation shall be owned in the aggregate by the former shareholders
of the Company as the same shall have existed immediately prior to
such merger or consolidation; or
(e) The Company liquidates, sells or otherwise transfers all or
substantially all of its assets to a person not controlled by the
Company both immediately prior to and immediately after such sale.
1.2 Employment Agreement
Any benefits provided to the Executive under this Agreement will
unless specifically stated otherwise in this Agreement be in addition to and not
in lieu of any benefits that may be provided the Executive under his employment
agreement with the Company dated May 9, 1979 (this agreement as previously,
herein or hereafter amended, restated or superseded is herein called the
"Employment Agreement").
Nothing in this Agreement is to be deemed to give the Company the
right to take any action or engage in any omission with respect to the Executive
(including Company Actions as defined in Section 2.4) at any time when any such
action or omission is not permissible and proper under the Employment Agreement
if then in force. Similarly, except as provided otherwise in this Agreement
(e.g. Section 2.4 and Section 5) nothing in this Agreement is to be deemed to
give the Executive the right to take any action or engage in any omission with
respect to the Company at any time when any such act or omission is not
permissible and proper under the Employment Agreement if then in force.
This Agreement shall continue for the term provided in Section 8.6 and
shall not be affected by any termination of the Employment Agreement.
2
2. Termination of Employment Following a Change in Control
2.1 General
During the 36 month period immediately following each and every
Change in Control (the "Protected Period"), the Executive and the Company shall
comply with all provisions of this Section 2 regarding termination of the
Executive's employment.
2.2 Termination for Disability
If the Employment Agreement is not in force, the Company may
terminate the Executive's employment for Disability. If the Employment Agreement
is in force the Company may terminate the Executive's employment for disability
only in accordance with the terms of the Employment Agreement. "Disability" as
used in this Agreement as distinguished from the Employment Agreement shall mean
the Executive's absence from, and his inability to substantially perform, his
duties with the Company for a continuous period of six or more months as a
result of physical causes or mental illness. During any period prior to the
termination of his employment that the Executive is absent from) and is unable
to substantially perform, his duties with the Company as a result of physical
causes or mental illness, the Company shall continue to pay the Executive his
full base salary at the rate then in effect and any bonuses earned by the
Executive under Company bonus plans until such time as the Executive's
employment is terminated by the Company for Disability. Following termination of
employment under this Section, the Executive's benefits shall be determined in
accordance with the Company's long term disability program as in effect on the
date hereof, or any successor program then in effect.
2.3 Termination by Company for "Cause"
If the Employment Agreement is not in force the Company may
terminate the Executive for Cause as defined in this Agreement. If the
Employment Agreement is in force the Company may terminate the Executive for
cause only in accordance with the terms of the Employment Agreement.
Termination for "Cause" under this Agreement as distinguished
from the Employment Agreement shall be limited to the following:
(a) The Executive's conviction of any crime involving money or other
property of the Company or any of its subsidiaries or of any
other crime (whether or not involving the Company or any of its
subsidiaries) that constitutes a felony in the jurisdiction
involved; or
(b) The Executive's continued, repeated, willful violations of
specific written directions of the Board or the Company's chief
executive officer, which directions are consistent with this
Agreement and the Executive's duties and do not constitute
Company Action as defined in Section 2.4 and which violations
3
continue following the Executive's receipt of such written
directions; or
(c) The Executive's continued, repeated, willful failure to perform
his duties; provided, however, that no discharge shall be deemed
for Cause under this subsection (c) unless the Executive first
receives written notice from the Board or the Company's chief
executive officer advising the Executive of specific acts or
omissions alleged to constitute a failure to perform his duties,
and such failure continues after the Executive shall have had a
reasonable opportunity to correct the acts or omissions so
complained of.
No act or failure to act on the Executive's part shall be
considered "willful" unless done, or omitted to be done, by the Executive in bad
faith and without reasonable belief that his action or omission was in the best
interest of the Company. Moreover, the Executive should not be terminated for
Cause unless and until there shall have been delivered to the Executive a notice
of termination duly adopted by the affirmative vote of at least three-quarters
of the entire membership of the Board at a meeting of the Board called and held
for the purpose (after reasonable notice to the Executive and an opportunity for
the Executive, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Executive was guilty of the
conduct set forth in Section 2.3(a), (b) or (c) and specifying the particulars
thereof in detail.
A termination shall not be deemed for Cause if, for example, the
termination results from the Company's determination that the Executive's
position is redundant or unnecessary or that the Executive's performance is
unsatisfactory or if the termination stems from the Executive's refusal to agree
to or accept any Company Action described and defined in Section 2.4.
2.4 Termination by Executive for Good Reason
The Executive may, whether or not his Employment Agreement
remains in force, terminate his employment for "Good Reason" by giving notice of
termination to the Company following (i) any action or omission by the Company
described in this Section 2.4 or (ii) receipt of notice from the Company of the
Company's intention to take any such action or engage in any such omission. A
termination of employment under this Section 2.4 shall be deemed a valid and
proper termination of the Employment Agreement if then in force and to this
extent the parties agree that the Employment Agreement is hereby amended.
The actions or omissions which may lead to a termination of
employment for Good Reason (herein collectively and severally "Company
Actions" are as follows:
(a) A reduction by the Company in the Executive's base salary as
in effect on the date hereof or as the same may be increased
from time to time or a failure by the Company to increase
the Executive's base salary each year during the Protected
Period by an amount which at least equals, on a percentage
basis, the average percentage increase in base salary for
all officers of the Company during the three full calendar
years immediately
4
preceding the Change in Control; or
(b) A change in the Executive's reporting responsibilities,
titles or offices as in effect immediately prior to a Change
in Control; or
(c) The assignment to the Executive of any positions, duties or
responsibilities inconsistent in the good faith opinion of
the Executive with the Executive's positions, duties and
responsibilities with the Company immediately prior to the
Change in Control; or
(d) A failure by the Company (i) to continue any cash bonus or
other incentive plans substantially in the forms in effect
immediately prior to the Change in Control) or (ii) to
continue the Executive as a participant in such plans on at
least the same basis as the Executive participated in
accordance with the plans immediately prior to the Change in
Control; or
(e) A requirement by the Company that the Executive be based or
perform his duties anywhere other than at the Company's
Corporate Office location immediately prior to the Change in
Control, except for required travel on the Company's
business to an extent substantially consistent with the
Executive's business travel obligations immediately prior to
the Change in Control or, in the event the Executive
consents to any relocation, the failure by the Company to
pay (or reimburse the Executive for) all reasonable expenses
incurred by him relating to a change of his principal
residence in connection with such relocation and to
indemnify the Executive against any loss realized on the
sale of his principal residence in connection with any such
change of residence (loss is defined as the difference
between the actual sale price of such residence and the
higher of (i) the aggregate investment in such residence
(including improvements thereto) or (ii) the fair market
value of such as determined by a real estate appraiser
designated by the Executive and reasonably satisfactory to
the Company); or
(f) A failure by the Company to continue in effect any benefit
or other compensation plan (e.g. stock ownership plan, stock
purchase plan, stock option plan, life insurance plan,
health and accident plan or disability plan) in which the
Executive is participating at the time of a Change in
Control (or plans providing the Executive with substantially
similar benefits), the taking of any action by the Company
which would adversely affect the Executive's participation
in or materially reduce the Executive's benefits under any
of such plans or deprive the Executive of any material
fringe benefit enjoyed by him at the time of the Change in
Control, or the Company's failure to provide the Executive
with the number of paid vacation days to which he is
entitled in accordance with the Company's normal vacation
practices with respect to the Executive at
5
the time of the Change in Control; or
(g) A fai1ure by the Company to obtain the assumption agreement
to perform this Agreement by any successor as contemplated
by Section 7 of this Agreement; or
(h) Any purported termination of the Executive's employment that
is not carried out (i) pursuant to a notice of termination
which satisfies the requirements of Section 2.5 or (ii) in
accordance with Section 2.3, if applicable; and for purposes
of this Agreement, no such purported termination shall be
effective.
2.5 Notice of Termination
Any purported termination by the Company of the Executive's
employment under Section 2.2 (Disability) or 2.3 (for Cause) or by the Executive
under Section 2.4 (for Good Reason) shall be communicated by notice of
termination to the other party. A notice of termination shall mean a notice
which shall include the specific termination Section in this Agreement relied
upon and shall set forth in reasonable detail, the facts and circumstances
claimed to provide a basis for termination of employment under the Section so
indicated.
2.6 Date of Termination
The date the Executive's employment is terminated under this
Agreement for Disability, for Cause or for Good Reason is called the "Date of
Termination." In cases of Disability, the date of termination shall be 30 days
after notice of termination is given (provided that the Executive shall not have
returned to the performance of his duties on a full-time basis during such 30
day period). If the Executive's employment is terminated for Cause, the Date of
Termination shall be the date specified in the notice of termination. If the
Executive's employment is terminated for Good Reason, the Date of Termination
shall be the date set out in the notice of termination.
Any dispute by a party hereto regarding a notice of termination
delivered to such party must be conveyed to the other party within 30 days after
the notice of termination is given. If the particulars of the dispute are not
conveyed within the 30 day period, then the disputing party's claims regarding
the termination shall be forever deemed waived.
2.7 Prior Notice Required of Company Actions
During the Protected Period, the Company shall not terminate the
Executive's employment (except for Disability or for Cause or pursuant to the
Employment Agreement) or take any Company Action as defined in Section 2.4
without first giving the Executive at least three months' prior notice of
termination or the planned Company Action, as the case may be.
3. Benefits upon Termination of Employment
6
3.1 General
If, during the Protected Period following each Change in Control,
the Executive's employment is terminated either (i) by the Company (other than
for Disability or Cause under this Agreement and other than for disability or
cause under the employment Agreement) or (ii) by the Executive for Good reason,
then the Executive, at his election, shall be entitled to the benefits provided
in this Section 3 (collectively and severally "Termination Benefits"). If the
Executive elects to receive Termination Benefits under this Agreement then he
shall automatically forfeit his option under Section 9 of the Employment
Agreement to render consulting services to the Company on the terms and
conditions set out in the Employment Agreement. This forfeiture shall not in any
manner affect the option of the Company under Section 9 of the Employment
Agreement to obtain the consulting services of the Executive.
3.2 Base Salary Through Date of Termination; Previously Earned Bonus
The Company shall promptly pay the Executive his full base salary
through the Date of Termination at the rate in effect at the time notice of
termination is given. In addition, the Company shall promptly pay the amount of
any bonus for a past period which has been earned by the Executive but not yet
paid under the applicable bonus plan. The Company shall give the Executive
credit for any vacation earned but not taken.
3.3 Pro-Rata Bonus for Year of Termination
The Company shall pay the Executive a pro-rata bonus for the year
in which his employment terminates. The pro-rata bonus shall be equal to "A"
divided by "B" with the quotient multiplied by "C" where:
(a) "A" equals the number of days the Executive is employed by the
Company in the year in which the termination of employment occurs
(the "Termination Year");
(b) "B" equals 365; and
(c) "C" equals the maximum bonus the Executive would have been
eligible for in the Termination Year under Section 4.2 of his
Employment Agreement or under the Company's Executive and Key Man
Incentive Compensation Plan (or successor plans), whichever may
be applicable.
The pro-rata bonus shall be paid by the Company in a lump sum,
con-currently with the first severance pay installment provided for in Section
3.4.
7
3.4 Monthly Severance Payments
The Company shall pay the Executive aggregate severance payments
equal to (i) 160% of the Executive's annual base salary as of the date of the
Change in Control or as of the Date of Termination, whichever is greater,
multiplied by (ii) three. The severance payments shall be made in 36 equal,
consecutive monthly installments, with the first installment to be on the first
day of the first month immediately following the Date of Termination. The 160%
figure in this Section shall be appropriately increased or decreased if and as
the Executive's maximum annual bonus potential (expressed as a percentage of his
annual base salary) is increased or decreased.
3.5 Fringe Benefits (General)
The Company shall maintain in full force, for the continued
benefit of the Executive for three years after the Date of Termination, all
employee benefit plans, programs and/or arrangements (collectively and severally
"Benefit Plans") in which the Executive was entitled to participate immediately
prior to the Date of Termination provided the Executive's continued
participation is possible under the general terms and provisions of such Benefit
Plans. If the Executive's participation in any such Benefit Plan is barred, the
Company shall arrange to provide the Executive with benefits substantially
similar to those which the Executive is entitled to receive under such Plans. At
the end of the three year period of coverage, the Executive shall have the
option to have assigned to him at no cost and with no apportionment of prepaid
premiums, any assignable insurance policy owned by the Company and relating
specifically to the Executive.
3.6 Retirement Plans
The Company shall pay the Executive in cash a lump sum additional
retirement benefit. Such benefit shall be paid at the Executive's normal
retirement age (or earlier retirement age should the Executive so elect) as
defined in the retirement programs in which the Executive participates or any
successor programs in effect on the date of any Change in Control. Such
additional benefit shall be equal to the actuarial equivalent of the additional
retirement benefit to which the Executive would have been entitled under such
retirement programs had he accumulated three additional years of continuous
service (following the Date of Termination) under such retirement programs both
for purposes of determining eligibility for benefits and for purposes of
calculating the amount of such benefits. If any retirement program requires
contributions by participants and the Executive is precluded by the terms of the
program from making such contributions following the Date of Termination, then
the amount of additional retirement benefit payable under this Section 3.6 shall
be equitably adjusted to reflect the absence of contributions by the Executive.
The Company shall pay the Executive in cash each month the result
obtained by subtracting "Y" from "X" where:
8
(a) "Y" is the monthly Pension Payment the Executive receives
under Section 6 of the Employment Agreement; and
(b) "X" is the monthly Pension Payment the Executive would have
received under Section 6 of the Employment Agreement had his
employment terminated three years later than it in fact
terminated.
The benefits under this Section 3.6 are in addition to those the
Executive may be entitled to under the retirement programs in question. In
addition, the benefits provided under this Section 3.6 do not in any way limit
the benefits payable to the Executive under Section 3.5.
3.7 Stock Options
The Company shall at the request of the Executive accelerate and
make immediately exercisable in full all unexercised stock options which the
Executive then holds to acquire securities from the Company. This shall be done,
to the maximum extent possible, in a manner that will allow the Executive, upon
the exercise of any such options, to obtain favorable Federal Income tax
treatment. The Executive's request may be made at any time during the period
beginning with the giving of the notice of termination and ending three months
after the Executive's employment terminates (the "Option Election Period").
Instead of exercising any or all outstanding stock options then
held by him, the Executive may elect during the Option Exercise Period to
surrender to the Company his rights in such outstanding stock options (whether
or not then exercisable). Upon such surrender, the Company shall pay to the
Executive an amount in cash per optioned share equal to the difference between
(i) the option price of such share and (ii) the higher of: (x) the closing price
of the Company's shares on the date of the Change in Control, (y) the closing
price of the Company's shares on the date the options (or in the case of Section
3.10, the shares) are surrendered to the Company, or (z) the highest price per
Company share actually paid in connection with any Change in Control of the
Company.
If, within six months of the taking of any Company Action under
Section 2.4, the Executive dies while still employed by the Company, the
Executive's estate shall be entitled, upon notice to the Company within 90 days
of the Executive's death, to be paid an amount equal to the amount the Executive
would have received had he surrendered all of his stock options under this
Section as of the date preceding his death. Such amount shall be paid in cash by
the Company within 45 days after receipt of the notice and the delivery of an
instrument surrendering all rights the Executive's estate may have held to the
stock options.
3.8 Purchase of Company Car
The Company shall permit the Executive during the Option Election
Period to purchase any Company automobile the Company was providing for the
Executive's use at the time notice of termination was given. The purchase price
shall be the book or wholesale value
9
of such automobile at such time, whichever is lower.
3.9 Job Search Assistance; Legal Fees; etc.
The Company shall reimburse the Executive for the costs of his
job search, including air fares, telephone conversations, advertisements,
executive placement or search fees and the like to the extent not reimbursed by
others. In addition, the Company shall provide the Executive with adequate
secretarial assistance and office space while the Executive's job search
continues. The Company shall promptly reimburse the Executive for all relocation
costs to the extent such reimbursement is not made by the Executive's new
employer. The Company1s obligations under this first paragraph of Section 3.9
shall terminate three years from the Date of Termination.
The Company shall pay all relocation and indemnity payments as
set forth in Section 2.4(e), and all legal fees and expenses incurred by the
Executive as a result of the termination of his employment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination of employment or in seeking to obtain or enforce any right or
benefit provided by this Agreement).
3.10 Repurchase of Company Shares Owned by Executive
Upon request made during the Option Election Period, the Company
shall purchase all Company shares owned by the Executive immediately prior to
the Date of Termination. Within 45 days after the request is made, the
Executive's shares properly endorsed and free of all claims shall be delivered
to the Company. Thereupon, the Company shall pay the purchase price in cash. The
purchase price shall be the highest price per share that can be computed under
Section 3.7.
3.11 Termination Which Does Not Require Payment of Termination
Benefits
No Termination Benefits need be provided by the Company to the
Executive under this Section 3 if the Executive's employment is terminated:
(a) By his death; or
(b) By the Executive for any reason other than for Good Reason
(e.g. by retirement); or
(c) By the Company for Disability or for Cause under this
Agreement or for disability or cause under the Employment
Agreement.
As used herein, retirement by the Executive means termination of
employment in accordance with the Company's normal retirement policy, including
early retirement, generally applicable to the Company's salaried employees or in
accordance with any special retirement arrangement jointly established by the
Company and the Executive and
10
mutually agreeable to both.
4. New Employment; Reduction of Termination Benefits
The Termination Benefits provided under Section 3 shall not be treated
as damages, but rather shall be treated as severance compensation to which the
Executive is entitled. The Executive shall not be required to mitigate the
amount of any Termination Benefit provided under Section 3 by seeking other
employment or otherwise. If, however, following a termination of employment
which invokes Section 3, the Executive becomes employed full time by a third
party (as distinguished from becoming self-employed or being employed by an
employer controlled by the Executive and/or members of his immediate family),
then the amount of any cash compensation (including base salary and bonuses)
received by the Executive from such third party shall reduce on a dollar for
dollar basis, but not below zero, the amount of cash payments which the
Executive is thereafter entitled to receive under Section 3.4. In addition, any
fringe benefits that the Executive may receive from full time employment by a
third person (as distinguished from self-employment or employment by an employer
controlled by the Executive and/or members of his immediate family) shall be
applied against and reduce any fringe benefits thereafter to be made available
to the Executive under Section 3.5. In no event shall the Executive be required
to return to the Company any Termination Benefits received by him prior to his
commencement of full time employment with a third person.
5. Voluntary Termination of Employment By Executive
The Executive may voluntarily terminate his employment with the
Company for any reason (including retirement) within one year of any Change in
Control described in this Section. A termination of employment under this
Section 5 shall be deemed a valid and proper termination of the Employment
Agreement if then in force and to this extent the parties agree that the
Employment Agreement is hereby amended. Upon any such termination of Employment
the Executive may in his sole discretion elect to receive, and the Company shall
provide, the following benefits and no others under this Agreement:
(a) The Company shall promptly pay the Executive those salary,
bonus and vacation payments provided for in Section 3.2,
which section is incorporated by reference in this Section
5.
(b) The Company shall promptly pay the Executive the pro-rata
bonus provided for in Section 3.3, which section is
incorporated by reference in this Section 5.
(c) The Company shall promptly pay the Executive a
non-forfeitable lump sum cash termination payment equal to
75% of the Executive's total cash compensation for the
calendar year immediately preceding the Date of Termination
of his employment.
11
(d) The Company shall provide the Executive for one year with
those fringe benefits described in Section 3.5, which
section is incorporated by reference in this Section 5. The
fringe benefits provided under this subsection (d) shall be
reduced by any fringe benefits the Executive may thereafter
receive from full time employment by a third person (as
distinguished from self-employment).
If the Executive does not elect to receive benefits under this Section
5, then he shall remain eligible to receive Termination Benefits in accordance
with the provisions of Section 3.
The benefits payable to the Executive under this Section 5 are in
addition to all benefits provided to him under the Employment Agreement except
as provided in the next following sentence. If the Executive elects to receive
benefits under this Section 5, then he shall automatically forfeit his option
under Section 9 of the Employment Agreement to render consulting services to the
Company on the terms and conditions set out in the Employment Agreement. This
forfeiture shall not in any manner affect the option of the Company under
Section 9 of the Employment Agreement to obtain the consulting services of the
Executive.
The only Change in Control that will permit an Executive to make an
election under this Section 5 is a Change in Control that is opposed by a
majority vote of the Board and in connection with such Change in Control or as a
result thereof:
(a) A majority of the whole Board becomes comprised of persons
other than Original Directors or their Successors (as those
terms are defined in Section 1(c)); or
(b) Any person (as defined in Section 1(b)) becomes the
beneficial owner (as defined in Section 1(b)); directly or
indirectly of 50% or more of the combined voting power of
the Company's then outstanding voting securities.
6. Termination of Employment Prior to Change in Control
Prior to a Change in Control and if there is no Employment Agreement
in force, the Executive shall not voluntarily terminate his employment with the
Company except upon at least three months' prior notice. Similarly, the Company
shall not terminate the Executive's employment other than for Cause except upon
at least three months' prior notice. If the Employment Agreement is in force,
termination of employment by the Executive or the Company shall be governed by
the terms thereof.
7. Successor; Binding Agreement
The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of
12
the Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place (the assumption shall be by agreement in
form and substance satisfactory to the Executive). Failure of the Company to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive, at his election, to
Termination Benefits from the Company in the same amount and on the same terms
as the Executive would be entitled to hereunder if he terminated his employment
for Good Reason, except that for purposes of implementing the foregoing, the
date on which any such election becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
7 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there be no such designee, to his estate.
8. Miscellaneous
-------------
8.1 Notice
All notices, elections, waivers and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth on the first page of this Agreement, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
8.2 No Waiver
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and an officer of the Company. No waiver by either party
at any time of any breach by the other party 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. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
13
8.3 Enforceability
--------------
The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
8.4 Disputes
--------
Notwithstanding the pendency of any dispute involving this
Agreement, the Company shall continue to pay all amounts and provide all
benefits which the Executive alleges are required by this Agreement
(collectively the "Disputed Benefits") until the dispute is finally resolved by
agreement, litigation or otherwise. If the dispute is resolved in the Company's
favor, then the person(s) resolving the dispute shall further determine (i)
whether the Executive initiated and continued the dispute in good faith and (ii)
whether there was a reasonable basis for the allegations made by the Executive.
If it is determined the Executive proceeded in good faith and with a reasonable
basis for his allegations, then the Executive shall not be required to reimburse
the Company for the Disputed Benefits received by him. Otherwise the Executive
shall be required (i) to fully reimburse the Company for the actual cost to the
Company of providing the Disputed Benefits and (ii) to pay the Company as
liquidated damages a lump sum cash payment equal to 20% of the Disputed
Benefits.
8.5 Sections; Captions
------------------
All references in this Agreement to Sections refer to the
applicable Sections of this Agreement. References in this Agreement to a given
Section (e.g. Section 3) shall, unless the context requires otherwise, refer to
all parts of such Section (e.g. 3.1 through 3.10).
The captions have been placed in this Agreement for ease of
reference only. They shall not be used in the interpretation of this Agreement.
8.6 Term of Agreement
-----------------
This Agreement shall continue in force so long as the
Executive remains employed by the Company or any successor and shall apply to
any Change in Control that occurs while the Executive remains so employed.
8.7 No Right of Offset
------------------
Effective upon the occurrence of a Change in Control, the
Company waives, and will not assert, any right to set off the amount of any
claims, liabilities, damages or losses the Company may have against any amounts
payable by the Company to the Executive whether under this Agreement or
otherwise.
14
8.8 Successive Changes in Control
-----------------------------
A separate Change in Control shall be deemed to have
occurred with each occurrence of any event described at subsections (a) through
(e) of Section 1.1. This Agreement pertains to each and every Change in Control,
including successive Changes in Control involving the same controlling
person(s).
8.9 Interpretation of Agreement
---------------------------
In the event of any ambiguity, vagueness the interpretation
or meaning of this Agreement, this liberally construed so as to provide to the
Executive the full benefits set out herein.
IN WITNESS WHEREOF, this Agreement has been signed as of the day
and year first above written.
Attest: XXXXXXX & XXXXX, INCORPORATED
/s/ XXXXXX X. XXXX /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- ----------------------------------
Assistant Secretary Vice President
/s/ Xxxxx X. Xxxxxxx, Xx.
----------------------------------
Executive
15
EXHIBIT B
---------
Set out below are the general terms and conditions applicable to
Options.
1. Flexible Stock Plan, Non-Qualified Options.
All Options shall be granted under the Company's 1989 Flexible Stock
Plan, as amended, or any successor plan (the "Plan") and shall be subject to all
terms and conditions of the Plan; If, however, the Executive is not eligible for
a grant under the Plan, the Company will at Executive's request, use reasonable
efforts to file a registration statement with the Securities and Exchange
Commission covering shares received upon exercise of the Options.
Notwithstanding the foregoing, the Company shall not be required to file such
registration statement at a time when the Company's Board of Directors
determines that it is not in the best interests of the Company's shareholders.
All Options shall be non-statutory options not entitled to special tax
treatment under (S)422 of the Internal Revenue Code of 1986, as amended to date.
2. Option Grant Dates.
The date of the Option grant (the "Grant Date") shall be the date the
Executive delivers the Election Notice to the Company or on such other date as
the Company and the Executive shall otherwise agree. The Election Notice shall
be deemed delivered on the date it is sent to the Compensation Committee.
3. Option Formula.
The number of Option shares granted to the Executive shall be equal to
the nearest number of whole shares determined in accordance with the following
formula:
Number of Shares under Option = Present Value of Pension Payments
to be Converted / Fair Market Value
"Fair Market Value" means the closing price of L&P's common stock
("Common Stock") on the Grant Date, minus the par value of such Common Stock.
4. Option Price. The option price per share for all shares covered by an
Option shall be the par value of the Common Stock.
5. Limited Transferability.
5.1 Except as provided in Sections 5.2, 5.3 or unless otherwise
allowed by the Compensation Committee, no Option or interest therein may be
transferred, assigned, pledged or hypothecated by the Executive during his
lifetime, whether by operation of law or otherwise, or be made subject to
execution, attachment or similar process and shall be
exercised during the lifetime of the Executive only by him or, in the case of
disability, his guardian or legal representative.
5.2 Executive may transfer all or a part of the Options by way of
bona fide gift. The donee of the gift shall hold the Options subject to all the
terms and conditions of the agreement evidencing the Options. A gift to a minor
shall not be permitted except pursuant to the Uniform Transfers to Minors Act or
similar legislation. If a gift is made it will be recognized by the Company only
if the donor gives written notice to the Company of the gift, identifying the
donee's name and address.
5.3 Options may be transferred by will or the laws of descent and
distribution.
6. Term of Options. Options shall have a term of 15 years from the Grant
Date.
7. Vesting. Options shall be fully vested on the Grant Date.
8. Exercise of Option. Options shall be exercisable on the Grant Date.
An Option may be exercised only by delivering a written notice to the
Company accompanied by payment of the full option price for the shares
purchased. Unless otherwise prohibited by the option agreement, such
consideration may be paid by delivery of share of Common Stock (held for at
least 6 months) or a combination of cash and shares of Common Stock. Any such
shares shall be valued at the fair market value of such shares on the day
immediately preceding the date of exercise. Options may be exercised in full or
in part for whole shares (no fractional shares will be issued) and any
exercisable portion not exercised may be later exercised subject to the
expiration date. The written notice shall specify the number of shares the
Executive then desires to purchase. No shares shall be delivered in connection
with the exercise of an Option unless all amounts required to satisfy tax and
any other required withholdings have been paid to the Company by or on behalf of
the Executive.
If any Option has not been fully exercised on the last day of the term
("Expiration Date"), the unexercised portion of the Option shall be deemed
exercised on such Expiration Date. In such event, shares of Common Stock shall
not be issued until the option price and any other required amounts have been
paid.
Upon the death of a Executive, his Options shall be exercisable by the
person or persons entitled to do so under his will or by written designation
filed with the Company or, if the Executive fails to make testamentary
disposition of the Options or dies intestate by the Executive's legal
representative or representatives. All Options must be exercised prior to the
end of the term.
9. Modification, Extension and Renewal of Options. The Committee shall
have the power to modify, extend or renew outstanding Options and authorize the
grant of new Options in substitution therefor, provided that any such action may
not have the effect of altering or impairing any rights or obligations of any
Option previously granted without the consent of the Executive.
2
10. No Shareholders' Rights. The Executive shall have no rights as a
shareholder with respect to the shares covered by his Options until
the date of the issuance to him of a stock certificate therfor, and no
adjustment will be made for dividends or other rights for which the
record date is prior to the date such certificate is issued.
3
EXHIBIT 10.1(1)
AMENDMENT NO. 1
TO THE
RESTATED AND AMENDED EMPLOYMENT AGREEMENT
BETWEEN
XXXXX X. XXXXXXX, XX.
AND
XXXXXXX & XXXXX, INCORPORATED
This Amendment No. 1 to the Restated Agreement is made as of January 1,
1999 by Xxxxxxx & Xxxxx, Incorporated (the "Company") and Xxxxx X. Xxxxxxx, Xx.
(the "Executive").
RECITALS
The Company and the Executive entered into a Restated and Amended
Employment Agreement as of August 14, 1996 (collectively, the "Employment
Agreement"). The Company and the Executive now desire to amend the Employment
Agreement as set out below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the Company and the
Executive agree as follows:
1. Section 1 (Employment) of the Employment Agreement, first paragraph, is
hereby amended to read in its entirety as follows:
1. Employment
The Company hereby reaffirms its employment of the Executive
as its Chairman of the Board and Chief Executive Officer, and
the Executive hereby confirms his employment in that capacity.
Beginning on May 13, 1999, the Executive shall no longer be
the Chief Executive Officer of the Company, but shall remain
as Chairman of the Board (if so elected by the Board),
Chairman of the Executive Committee (if so elected by the
Board) and an employee of the Company.
2. Section 2.1 (Term) of the Employment Agreement is hereby amended
to read in its entirety as follows:
2. Term
The term of this Restated Agreement commenced on May 9, 1979
and shall end on May 10, 2000, unless terminated earlier in
accordance with
the provisions of this Restated Agreement. Upon mutual
agreement between the Executive and the Company, the term of
this Restated Agreement may be extended for an additional
one-year period.
3. Section 3 (Duties and Authority) of the Employment Agreement is
hereby amended to add a new paragraph at the end of such Section that
reads as follows:
Notwithstanding the foregoing, beginning on May 13, 1999, (i)
the Executive shall no longer be required to devote his full
business time to the affairs of the Company nor shall he be
prohibited from devoting substantial time to personal business
interests, (ii) the Executive shall no longer serve as the
Chief Executive Officer of the Company, and (iii) the
discretion and control exercised by the Board after such date
shall be such as is exercised by a board of directors over a
chairman of the board.
4. Section 4.1 (Base Salary) of the Employment Agreement is hereby
amended to add a new paragraph to the end of such Section that reads
as follows:
Notwithstanding the foregoing, beginning May 13, 1999, the
Executive shall be paid salary at an annual rate of $600,000
and the provisions of paragraph 1 of this Section 4.1 shall no
longer be applicable after such date.
5. Section 4.2 (Annual Cash Bonus) of the Employment Agreement is
hereby amended to add a new paragraph to the end of such Section that
reads as follows:
Beginning on May 13, 1999, the Executive shall no longer be
entitled to earn an incentive cash bonus. However, he shall be
entitled to a prorated incentive bonus for 1999 payable in
February 2000 based on such May 13, 1999 date (i.e. 132 days
out of a 365-day year). In addition, Executive shall be
entitled to a guaranteed bonus at an annual rate of $400,000
beginning on May 13, 1999 (which shall be paid in equal
bi-weekly installments).
6. Section 4.3 (Vacations; Other Benefits) of the Employment
Agreement, paragraph 3, is hereby amended by deleting the phrase "or
Chief Executive Officer of the Company."
7. Section 8 (Executive's Option to Terminate Agreement) of the
Employment Agreement, paragraph (a), is hereby amended by deleting the
phrase "or Chief Executive Officer of the Company."
8. Section 9 (Consulting Agreement) of the Employment Agreement,
paragraph (c), is hereby amended to read in its entirety as follows:
(c) In consideration for the consulting services to be
rendered by the Executive, the Company shall pay the
Executive during the first and second years of
consultation an amount equal to 100% and 75%,
respectively, of the total compensation ("Total
Compensation") accrued by the Company for services
rendered by the Executive during 1998. Total Compensation
shall be computed in the manner described in Section 6.3.
9. Section 9 (Consulting Agreement) of the Employment Agreement is
hereby amended to add a new paragraph to the end of such Section that
reads as follows:
The Executive shall be entitled to defer receipt of future
consulting payments. The deferral election may be made under the
Company's Deferred Compensation Program, or, if the Executive is
not then eligible to participate in the Deferred Compensation
Program, such other program with substantially the same economic
benefits as are available under the Deferred Compensation Program.
IN WITNESS WHEREOF, the Company and the Executive have signed this Amendment No.
1 as of the date first above written.
Executive Xxxxxxx & Xxxxx, Incorporated
/s/ XXXXX X. XXXXXXX, XX. By: /s/ XXXXXX X. XXXX
------------------------------------ -----------------------------------
Xxxxx X. Xxxxxxx, Xx. Name: Xxxxxx X. Xxxx
--------------------------------
Title: Vice President
--------------------------------
EXHIBIT 10.1(1)
April 24, 2000 CONFIDENTIAL
------------
MEMO TO: Xxxxx X. Xxxxxxx, Xx.
FROM: Xxxxxx X. Xxxx
SUBJECT: Xxxxx X. Xxxxxxx Employment Agreement
Our File No.: 2-111-2B
--------------------------------------------------------------------------------
Your Employment Agreement terminates on May 10, 2000, unless it is extended for
an additional one-year period upon mutual agreement between you and the Company.
(See Tab 1 for a copy of your Agreement. I have highlighted the relevant Section
2.1.) The attached Unanimous Written Consent of the Compensation Committee dated
March 14, 2000 extends the term of your Employment Agreement for one year,
ending May 10, 2001. (See Tab 2.)
If you agree to the extension of your Employment Agreement, please indicate your
agreement by signing below. Thank you.
Executive Xxxxxxx & Xxxxx, Incorporated
/s/ XXXXX X. XXXXXXX, XX. /s/ XXXXXX X. XXXX
--------------------------- ---------------------------------------
Xxxxx X. Xxxxxxx, Xx. Xxxxxx X. Xxxx
Vice President
c: Xxxxx X. Xxxxxx
EXHIBIT 10.1(1)
March 1, 2001
MEMO TO: Xxxxx X. Xxxxxxx, Xx.
FROM: Xxxxxx X. Xxxx
RE: Xxxxx X. Xxxxxxx Employment Agreement
Our File No.: 2-111-2B
--------------------------------------------------------------------------------
Dear Xxxxx:
As you know, the Board of Directors approved the extension of your employment
agreement for an additional one-year period (May 10, 2001 - May 10, 2002). See
Tab 1 for a copy of your agreement.
If you agree to the extension of your Employment Agreement for this one year
period, please indicate by signing below. Thank you.
Executive Xxxxxxx & Xxxxx, Incorporated
/s/ XXXXX X. XXXXXXX, XX. /s/ XXXXXX X. XXXX
--------------------------- ---------------------------------------
Xxxxx X. Xxxxxxx, Xx. Xxxxxx X. Xxxx
Vice President
c: Xxxxx X. Xxxxxx