ANGELICA CORPORATION EMPLOYMENT AGREEMENT
Exhibit
10.32
▇▇▇▇▇▇▇▇
CORPORATION
This
agreement (‘‘Agreement’’) has been entered into this 27th day of November, 2006,
by and between ▇▇▇▇▇▇▇▇ Corporation, a Missouri corporation (the “Company”), and
▇▇▇▇ ▇▇▇▇▇▇▇, an individual (the “Executive”).
WHEREAS,
the
Board of Directors of the Company has determined that it is in the best
interests of the Company and its stockholders to employ executive as Chief
Administrative Officer as of the Employment Start Date (as defined below) and,
additionally, as Senior Vice President as of the Effective Date (as defined
below); and
WHEREAS,
this
Agreement contains the terms and conditions that have been negotiated by the
Company and the Executive as an inducement to the Executive to accept employment
by the Company;
NOW
THEREFORE,
in
consideration of the mutual promises herein contained, the parties hereby agree
as follows:
Section
1: Definitions
and Construction.
1.1 Definitions.
For
purposes of this Agreement, the following words and phrases, whether or not
capitalized, shall have the meanings specified below, unless the context plainly
requires a different meaning.
1.1(a) “Accrued
Obligations”
has the
meaning set forth in Section 4.1(a) of this Agreement.
1.1(b) “Annual
Base Salary” has
the
meaning set forth in Section 2.3(a) of this Agreement.
1.1(c) “Board”
means
the Board of Directors of the Company.
1.1(d) “Cause”
has
the
meaning set forth in Section 3.3 of this Agreement.
1.1(e) “Company”
has
the
meaning set forth in the first paragraph of this Agreement and, with regard
to
successors, in Section 6.2 of this Agreement.
1.1(f) “Code”
shall
mean the Internal Revenue Code of 1986, as amended.
1.1(g) “Date
of Termination”
has the
meaning set forth in Section 3.6 of this Agreement.
1.1(h) “Disability”
has the
meaning set forth in Section 3.2 of this Agreement.
1.1(i) “Disability
Effective Date” has
the
meaning set forth in Section 3.2 of this Agreement.
1.1(j) “Effective
Date”
means
December 8, 2006.
1.1(k) “Employment
Period”
means
the period beginning on the Employment Start Date and ending on the Date of
Termination.
1.1(l) “Employment
Start Date”
means
November 27, 2006.
1.1(m) “Grant
Date” has
the
meaning set forth in section 2.3(d) of this Agreement.
1.1(n) “Long-Term
Bonus”
has the
meaning set forth in Section 2.3(c) of this Agreement.
1.1(o) “Notice
of Termination”
has the
meaning set forth in Section 3.5 of this Agreement.
1.1(p) “Other
Benefits” has
the
meaning set forth in Section 4.1(d) of this Agreement.
1.2 Gender
and Number.
When
appropriate, pronouns in this Agreement used in the masculine gender include
the
feminine gender, words in the singular include the plural, and words in the
plural include the singular.
1.3 Headings.
All
headings in this Agreement are included solely for ease of reference and do
not
bear on the interpretation of the text. Accordingly, as used in this Agreement,
the terms “Article” and “Section” mean the text that accompanies the specified
Article or Section of the Agreement.
1.4 Applicable
Law; Venue.
This
Agreement is executed, entered into, and accepted in the State of Missouri,
and
shall be governed by and construed in accordance with the laws of the State
of
Missouri, without reference to its conflict of law principles. In any lawsuit
to
enforce or assert rights for a breach of this Agreement, venue shall be proper
in the St. Louis County Circuit Court, and the federal district court in St.
Louis, Missouri (if federal jurisdiction exists), and neither party may claim
that such forum is inconvenient or not the most convenient forum, or that it
otherwise is not a proper forum to decide the claims asserted.
Section
2: Terms
and Conditions of Employment.
2.1 Period
of Employment.
The
Executive shall remain in the employ of the Company throughout the Employment
Period in accordance with the terms and provisions of this Agreement. Either
party to this Agreement may terminate the Employment Period (and the Executive’s
employment with the Company) at any time by giving the other party a Notice
of
Termination, subject only to the obligation of the Company to pay the benefits
to the Executive as and under the conditions specified in Section 4 of this
Agreement. The term of this Agreement shall begin as of the Effective Date
and
shall end on the Date of Termination and shall accordingly be for no definite
term or duration.
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2.2 Positions
and Duties.
2.2(a) From
and
after the Employment Start Date, the Executive shall serve as Chief
Administrative Officer of the Company, and additionally, from and after the
Effective Date, the Executive shall serve as a Senior Vice President of the
Company. Throughout the Employment Period, the Executive shall perform his
duties subject to the reasonable directions of the Chief Executive Officer
of
the Company and the Board, and in such capacities shall perform such executive
and administrative duties as may be assigned to Executive from time to time
by
the Chief Executive Officer or the Board. The Executive shall have such
authority and shall perform such duties as are specified in or contemplated
by
the Bylaws of the Company for the offices to which he has been appointed and
shall so serve subject to the control exercised by the Chief Executive Officer
of the Company and the Board from time to time. The Executive will comply with
all policies of the Company in effect from time to time.
2.2(b) Throughout
the Employment Period (but excluding any periods of vacation and sick leave
to
which the Executive is entitled), the Executive shall devote reasonable
attention and time during normal business hours to the business and affairs
of
the Company and shall use his reasonable best efforts to perform faithfully
and
efficiently such responsibilities as are assigned to him under or in accordance
with this Agreement; provided that, it shall not be a violation of this Section
2.2(b) for the Executive to (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures or fulfill speaking
engagements, or (iii) manage personal investments, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement or violate the Company's conflict of interest policy as is in
effect at such times.
2.3 Compensation.
2.3(a) Annual
Base Salary.
The
Executive will be compensated on a salaried basis at an annual rate of pay
(“Annual Base Salary”) of Two Hundred Fifty Thousand Dollars ($250,000.00),
which shall be paid in equal or substantially equal monthly, semi-monthly or
bi-weekly instalments in accordance with the Company’s payroll practices in
effect from time to time for executives generally. During the Employment Period,
the Annual Base Salary shall be reviewed by the Board and/or the Compensation
and Organization Committee at least annually following the conclusion of the
current fiscal year (with the first such review taking place not later than
at
the conclusion of the Company’s fiscal year 2007), and may be increased at the
discretion of the Board or the Compensation and Organization Committee of the
Board. If the Annual Base Salary is increased, then the increased rate of
compensation shall constitute the Annual Base Salary. The Annual Base Salary
may
be reduced with the consent of the Executive.
2.3(b) Annual
Short Term Incentive Bonus.
Beginning with the 2007 fiscal year of the Company, during the Employment
Period, the Executive will be eligible to participate in the Company’s short
term incentive compensation program and be eligible to earn under and upon
the
terms of that plan an incentive award of up to 100% of Annual Base Salary based
on performance criteria established by the Board or its Compensation and
Organization Committee, with a target bonus equal to at least 50% of Annual
Base
Salary.
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2.3(c) Long-Term
Incentive Plan Awards. Beginning
with the 2007 fiscal year of the Company, during the Employment Period Executive
will be eligible to participate in the Company’s Long Term Incentive Program
(“LTIP”) at fifty percent (50%) of Annual Base Salary in accordance with the
terms of the LTIP as in effect from time to time (the “Long Term Bonus”) and be
eligible to earn under and upon the terms of the LTIP as in effect from time
to
time a Long Term Bonus based on performance criteria established by the Board
or
its Compensation and Organization Committee.
2.3(d)
Initial
Stock Option Grant.
As of
the Employment Start Date (the “Grant Date”), Executive shall receive an
non-qualified stock option grant under and upon the terms of the Company’s 1999
Performance Plan of a total of 75,000 shares of the Company’s stock. Unless
earlier forfeited or exercised, these options will expire ten (10) years
following the Grant Date. These options will be priced as follows: 25,000
options will be priced at the average market share price as of the Grant Date;
25,000 options will be priced at 110% of the average market share price as
of
the Grant Date; and 25,000 options will be priced at 120% of the average market
share price as of the Grant Date. These options will vest during the Employment
Period as follows: (1) 25% of each set of options (i.e. 6,250 of the options
priced at the average market share price on the Grant Date, 6,250 of the options
priced at 110% of the average market share price on the Grant Date, and 6,250
of
the options priced at 120% of the average market share price on the Grant Date)
will vest six (6) months following the Grant Date if Executive is employed
by
the Company at that time; (2) 25% of each set of options will vest eighteen
(18)
months following the Grant Date if Executive is employed by the Company at
that
time; (3) 25% of each set of options will vest thirty (30) months following
the
Grant Date if Executive is employed by the Company at that time; and (4) 25%
of
each set of options will vest forty-two (42) months following the Grant Date
if
Executive is employed by the Company at that time. Except as otherwise provided
in the Company’s 1999 Performance Plan, as amended and restated, if Executive’s
employment terminates for any reason, all options that have not vested as of
the
Date of Termination shall immediately lapse and terminate without pro
ration.
2.3(e) Savings,
Deferred Compensation and Retirement Plans. Throughout
the Employment Period, the Executive shall be entitled to participate in all
savings, deferred compensation and retirement plans generally available to
other
peer executives of the Company, with the exception that the Compensation and
Organization Committee of the Board has indicated its intention to reassess
the
Company’s Supplemental Plan for Selected Management Employees and the Executive
shall not participate in that plan without an affirmative decision on the part
of such Committee to include him in that Plan.
2.3(f) Welfare
Benefit Plans.
Throughout the Employment Period (and thereafter, to the extent provided for
in
Section 4.1(c) hereof), the Executive and/or the Executive's family, as the
case
may be, shall be eligible for participation in and shall receive all benefits
under welfare benefit plans, practices, policies and programs provided by the
Company to peer executives generally (including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life, group
life,
accidental death and travel accident insurance plans and programs) to the extent
generally available to other peer executives of the Company.
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2.3(g) Business
Expenses.
Throughout the Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable business expenses incurred by the
Executive, in accordance with and subject to the policies, practices and
procedures generally applicable to other peer executives of the Company.
2.3(h) Temporary
Living Expenses.
During
the three (3) month period immediately following Executive’s Employment Start
Date, the Company will reimburse Executive for the reasonable and customary
expenses Executive actually incurs for room and board while in the Atlanta,
Georgia metropolitan area while Executive is employed by the Company. While
the
Executive is employed by the Company, the Company also will reimburse Executive
for the reasonable cost of up to ten (10) personal round trip coach flights
between Vermont and Atlanta, Georgia, incurred at any time following the
Executive’s Employment Start Date.
2.3(i) Relocation
Expenses. The
Company will reimburse the Executive for the reasonable and customary expenses
actually incurred relating to the Executive’s move of the Executive’s household
belongings from the Executive’s then-current residence in Vermont to the
Atlanta, Georgia metropolitan area in accordance with and upon the terms of
the
Company’s relocation policy, provided this move occurs on or before the second
anniversary of the Employment Start Date. Upon the Executive’s purchase or lease
of housing in the Atlanta, Georgia metropolitan area during the Employment
Period, and provided that the Executive was employed by the Company as of the
closing date of such purchase or lease and no Notice of Termination was given
prior to such date, the Company will pay the Executive a lump-sum amount equal
to one-twelfth (1/12) of the Executive’s then Annual Base Salary (the
“Relocation Payment”). The Company will also make an additional payment (the
“Gross-Up Payment”) to the Executive in an amount required to allow the
Executive to retain the full amount of the Relocation Payment after payment
by
the Executive of all income taxes on the Relocation Payment and the Gross-Up
Payment.
2.3(j) Miscellaneous
Expenses. Throughout
the Employment Period, the Company will reimburse the Executive for the cost
of
maintaining a membership in one airline club of the Executive’s choosing. In
addition, during the Employment Period, the Company will provide the Executive
with the use, while in the Atlanta area, of the 2006 Lexus automobile maintained
by the Company in Atlanta, Georgia beginning on the Executive’s Employment Start
Date and continuing until the current lease for the 2006 Lexus expires or date
a
Notice of Termination is given, whichever first occurs. The current lease is
scheduled to expire on June 30, 2008. The Company will pay or reimburse the
Executive for automobile insurance for the vehicle and for the lease payments
and taxes associated with the lease, excluding costs incurred outside the
parameters of the lease.
2.3(k) Office
and Support Staff.
Throughout the Employment Period, the Executive shall be entitled to an office
or offices of a size and with furnishings and other appointments, and to
personal secretarial and other assistance, as are generally provided to other
peer executives of the Company.
2.3(l) Vacation.
Throughout the Employment Period, the Executive shall be entitled to four (4)
weeks of paid vacation annually and otherwise in accordance with the plans,
policies, programs and practices as are generally provided to other peer
executives of the Company.
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Section
3: Termination
of Employment.
3.1 Death.
The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period.
3.2 Disability.
If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), the Company may give to the Executive written notice in
accordance with Section 7.1 of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the thirtieth (30th) day after receipt of such notice
by
the Executive (the “Disability Effective Date”), provided that, within the
thirty (30) days after such receipt, the Executive shall not have returned
to
full-time performance of the Executive's duties. For purposes of this Agreement,
“Disability” shall mean that the Executive is unable with reasonable
accommodation to perform the services required of the Executive hereunder on
a
full-time basis for a period of one hundred eighty (180) consecutive business
days or more by reason of a physical and/or mental condition or injury.
“Disability” shall be deemed to exist when certified by a physician selected by
the Company and acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably). The Executive will submit to such medical or psychiatric
examinations and tests as such physician deems necessary to make any such
Disability determination.
3.3 Termination
for Cause.
The
Company may terminate the Executive's employment during the Employment Period
for “Cause,” which shall mean termination based upon: (i) the Executive's
willful and continued failure or refusal to substantially perform the
Executive’s duties with the Company (other than as a result of incapacity due to
physical or mental condition), after a written demand for substantial
performance is delivered to the Executive by the Company, which specifically
identifies the manner in which the Executive has not substantially performed
his
duties, (ii) the Executive's commission of an act constituting a criminal
offense that would be classified as a felony under the applicable criminal
code
or involving moral turpitude, dishonesty, or breach of trust, (iii) the
Executive is required to cease being an officer of the Company, or is unable
to
perform any of the Executive’s duties under this Agreement, by reason of any
regulatory requirement or the order or suggestion of any agency or body that
has
any supervisory or regulatory authority over the Company; (iv) violation of
the
Company’s Code of Conduct, or any policy prohibiting harassment, discrimination,
disclosure of confidential information, alcohol or drug use, or retaliation;
(v)
misappropriation of property of the Company or one of its affiliated businesses,
breach of fiduciary duty, or material violation of any law or regulation that
may result in a material financial loss to the Company or damage its reputation,
or (vi) the Executive's material breach of any provision of this Agreement.
For
purposes of this Section, no act or failure to act on the Executive's part
shall
be considered “willful” unless done, or omitted to be done, without good faith
and without reasonable belief that the act or omission was in the best interest
of the Company. Notwithstanding the foregoing, the Executive shall not be deemed
to have been terminated for Cause unless and until (i) the Executive receives
a
Notice of Termination from the Company, (ii) the Executive is given the
opportunity, with counsel, to be heard before the Board, and (iii) the Board
finds, in its good faith opinion, that the Executive was guilty of the conduct
set forth in the Notice of Termination.
3.4 Termination
for Good Reason. The
Executive may terminate his employment with the Company during the Employment
Period for “Good Reason,” which shall mean:
3.4(a)
the assignment to the Executive of any duties inconsistent in any respect
with
the Executive’s position (including status, offices, titles and reporting
requirements),
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authority,
duties or responsibilities as contemplated by Section 2.2(a) or any other
action
by the Company which results in the diminution in such position, authority,
duties or responsibilities, excluding for this purpose any action (i) not
taken
in bad faith by the Company and (ii) which the Company remedies promptly
after
receipt of notice thereof given by the Executive;
3.4(b)
(i) the failure by the Company to continue in effect any benefit or compensation
plan, stock ownership plan, life insurance plan, health and accident plan
or
disability plan to which the Executive is entitled as specified in Section
2.3,
provided that the Company may amend, modify or replace any such plan or plans
as
long as the Executive is entitled to benefits under the amended, modified
or
replaced plan or plans that are substantially similar to those of the plan
or
plans so amended, modified or replaced, (ii) 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 plans described in Section
2.3, or deprive the Executive of any benefits enjoyed by the Executive as
described in Section 2.3(j) and (k), or (iii) the failure of the Company
to
provide the Executive with paid vacation to which the Executive is entitled
as
described in Section 2.3(l);
3.4(c)
the Company’s requiring the Executive to be based at any office or location
other than the Company’s office in the Atlanta, Georgia metropolitan
area;
3.4(d)
a
material breach by the Company of any provision of this Agreement;
3.4(e)
any purported termination by the Company of the Executive’s employment otherwise
than as expressly permitted by this Agreement; and
3.4(f)
the failure of a successor of the Company to expressly assume and agree
to
perform this Agreement pursuant to the provisions of Section 6.2 of this
Agreement; provided, however, that a termination of employment by the
Executive
(A) subsequent to an express assumption and agreement to perform this
Agreement
by such successor, or (B) subsequent to a date that is two years after
the
succession event, shall not be deemed to be for “Good Reason” under this
subsection.
For
purposes of this Section, any good faith determination of “Good Reason” made by
the Executive shall be conclusive unless and until such determination is
overturned by a court of competent jurisdiction.
3.5 Voluntary
Termination by the Executive.
The
Executive may voluntarily terminate the Executive’s employment with the Company
for any reason or for no reason at any time during the Employment
Period.
3.6 Termination
by the Company without Cause.
The
Company may terminate the Executive’s employment with the Company for any reason
or for no reason, without citing Cause, at any time during the Employment
Period, subject to the provisions of Section 4 of this Agreement.
3.7 Notice
of Termination.
Any
termination of the Executive’s employment with the Company for Cause or
Disability, or voluntary termination by the Executive, shall be communicated
by
Notice of Termination from the terminating party to the other party, given
in
accordance with Section
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7.1.
For
purposes of this Agreement, a “Notice of Termination” means a written notice
which (i) indicates the specific termination provision in this Agreement
relied upon, (ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and (iii) if the
Date of Termination (as defined in Section 3.7 hereof) is other than the date
of
receipt of such notice, specifies the termination date (which date shall be
not
more than fifteen (15) days after the giving of such notice). The failure by
the
Company to set forth in the Notice of Termination any fact or circumstance
which
contributes to a showing of Cause shall not waive any right of the Company
hereunder or preclude the Company from asserting such fact or circumstance
in
enforcing the Company's rights hereunder.
3.8 Date
of Termination.“Date
of
Termination” means (i) if the Executive's employment is terminated by the
Company for Cause, the Date of Termination shall be the date of receipt by
the
Executive of the Notice of Termination or any later date specified therein,
as
the case may be, (ii) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death
of
the Executive or the Disability Effective Date, as the case may be, or (iii)
if
the Executive’s employment is voluntarily terminated by the Executive, the Date
of Termination shall be a date specified in the Notice of Termination, with
such
specified date being not less than ten (10) days after the date of receipt
by
the Company of the Notice of Termination, (iv) if the Executive's
employment is terminated other than for Cause, death, or Disability, the Date
of
Termination shall be the date of receipt by the Executive of the Notice of
Termination.
Section
4: Certain
Benefits Upon Termination.
4.1 Termination
by the Company Other Than For Cause; Termination by the Executive for Good
Reason. If,
during the Employment Period, the Company terminates the Executive's employment
other than for Cause or Disability or if the Executive terminates his employment
for Good Reason, the Executive shall be entitled to the payment of the benefits
provided below:
4.1(a) Accrued
Obligations.
Within
thirty (30) days after the Date of Termination, the Company shall pay to the
Executive the sum of (1) the Executive's accrued salary through the Date of
Termination for periods of time prior to the Date of Termination, (2) the
accrued benefits payable to the Executive under any deferred compensation plan,
program or arrangement in which the Executive is a participant subject to the
computation of benefits provisions of such plan, program or arrangement, and
(3)
any accrued vacation pay; in each case to the extent not previously paid (the
“Accrued Obligations”).
4.1(b) Annual
Base Salary.
The
Executive shall be entitled to receive an amount equal to the Annual Base
Salary, payable as and when described below. This amount (the “Separation
Payment”) will be paid over a one (1) year time period in the same equal
monthly, semi monthly or bi-weekly installments at which the Executive had
been
paid at the time employment terminated; provided that, to the extent required
to
avoid the tax consequences of Section 409A of the Code, and with the consent
of
the Executive: (i) the first payment shall cover all payments scheduled to
be
made to the Executive during the first six (6) months after the Date of
Termination; and (ii) the first such payment shall be delayed until the day
after the six (6) month anniversary of the Date of Termination. The Company
at
any time after the six (6) month anniversary of the Date of Termination may
elect to pay the balance of any remaining payments in a lump sum.
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4.1(c) Medical
and Health Benefit Continuation.
With
respect to the twelve (12) month period immediately following the Date of
Termination, the Company shall reimburse the Executive, on a monthly basis,
for
that portion of the cost incurred by the Executive to continue the Executive’s
then existing coverage under the Company’s group health insurance plan after the
Date of Termination equal to the portion paid for by the Company for such
coverage immediately prior to the Date of Termination, provided the Executive
timely elects COBRA continuation coverage; provided,
however,
that if
the Executive becomes employed with another employer and is eligible to receive
medical or health benefits under another employer-provided plan, program,
practice or policy then this benefit shall cease; and provided
further
that to
the extent necessary to avoid the tax consequences of Section 409A of the Code,
and with the consent of the Executive, the Company will not make any
reimbursement payment to the Executive that otherwise would be due prior to
the
day after the six (6) month anniversary of the Date of Termination, in which
case the Company will make a catch up payment for all amounts previously paid
by
the Executive that were eligible or reimbursement.
4.1(d) Other
Benefits.
To the
extent not previously paid or provided, the Company shall timely pay or provide
to the Executive and/or the Executive's family any other amounts or benefits
required to be paid or provided for which the Executive and/or the Executive's
family is eligible to receive pursuant to this Agreement and under any plan,
program, policy or practice or contract or agreement of the Company as those
provided generally to other peer executives and their families (“Other
Benefits”), provided, however, that to the extent necessary to avoid the tax
consequences of Section 409A of the Code, any such payments may be delayed
until
the first business day following the six (6) month anniversary of the Date
of
Termination.
4.2 Termination
Due to Death.
If the
Executive's employment is terminated by reason of the Executive's death during
the Employment Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this Agreement,
other
than for (i) payment of Accrued Obligations (as defined in Section 4.1(a))
(which shall be paid to the Executive's estate or beneficiary, as applicable,
in
a lump sum in cash within thirty (30) days of the Date of Termination) and
(ii)
the timely payment or provision of Other Benefits (as defined in Section
4.1(d)), including death benefits pursuant to the terms of any plan, policy,
or
arrangement of the Company.
4.3 Termination
Due to Disability.
If the
Executive's employment is terminated by reason of the Executive's Disability
during the Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for (i) payment of Accrued
Obligations (as defined in Section 4.1(a)) (which shall be paid to the Executive
in a lump sum in cash within thirty (30) days of the Date of Termination) and
(ii) the timely payment or provision of Other Benefits (as defined in Section
4.1(d)) including Disability benefits pursuant to the terms of any plan, policy
or arrangement of the Company.
4.4 Termination
by the Company for Cause or Voluntary Termination by the
Executive.
If the
Executive's employment shall be terminated by the Company for Cause during
the
Employment Period or by the Executive for any reason, this Agreement shall
terminate without further obligations to the Executive, other than for (i)
payment of the Executive’s Accrued Obligations (as defined in Section 4.1(a))
(which shall be paid to the Executive in a lump sum in cash within thirty (30)
days of the Date of Termination), and (ii) the timely payment or provision
of
Other Benefits (as defined in Section 4.1(d)), as applicable for such
termination.
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4.5
Entire Agreement; Prior Agreements and Benefits under Other Plans Superseded.
This
Agreement is the entire agreement of the parties on the subject matter contained
herein and shall supersede all prior agreements, arrangements and understandings
that the Executive and the Company may have had with respect to the Executive’s
employment with the Company and the payment of benefits by the Company to the
Executive in the event of a termination of the Executive’s employment. The
benefits payable pursuant to this Agreement are in lieu of and in substitution
for any termination benefits payable by the Company in conjunction with any
other plan, program, policy, practice, contract or agreement that the Company
may have had either in the past, currently or in the future.
4.6
Full Settlement.
The
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action
which
the Company may have against the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other action by
way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and, except as provided in Section 4.1(c), such
amounts shall not be reduced whether or not the Executive obtains other
employment. The Company agrees to pay promptly as incurred, to the full extent
permitted by law, all legal fees and expenses which the Executive may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive regarding the
amount of any payment pursuant to this Agreement), plus in each case interest
on
any delayed payment at the applicable Federal rate provided for in Code Section
7872(f)(2)(A).
4.7 Resolution
of Disputes. If
there
shall be any dispute between the Company and the Executive (i) as to whether
any
termination of the Executive’s employment was for Cause or (ii) as to whether
any termination of the Executive’s employment for Good Reason was made in good
faith, then, unless and until there is a final, non-appealable judgment by
a
court of competent jurisdiction declaring that such termination was for Cause
or
that the determination by the Executive of the existence of Good Reason was
not
made in good faith, the Company shall pay all amounts, and provide all benefits,
to the Executive and/or the Executive’s family or other beneficiaries, as the
case may be, that the Company would be required to pay or provide pursuant
to
Section 4.1 as though such termination was without Cause or for Good Reason,
as
the case may be; provided, however, that the Company shall not be required
to
pay any disputed amounts pursuant to this Section 4.7 except upon receipt of
an
undertaking by or on behalf of the Executive to repay all such amounts to which
the Executive is ultimately adjudged by such court not to be
entitled.
Section
5: Non-Competition.
5.1 Non-Compete
Agreement.
5.1(a) During
the Employment Period and the one (1) year period immediately following the
Date
of Termination, the Executive shall not, without prior written approval of
the
Board, become a partner, officer, director, stockholder, investor, advisor,
employee, consultant, agent, or otherwise of any business enterprise in
substantial direct competition (as defined in Section 5.1(b)) with the Company
or any of its subsidiaries in the United States or in any other country in
which
the Company conducts business on the Date of Termination, or otherwise engage
in
substantial direct competition with the Company
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within
such area. This restriction will not limit the Executive’s right to invest in
five percent (5%) or less of the outstanding capital stock or other equity
securities of any corporation, whose stock or securities are publicly traded
on
a national stock exchange.
5.1(b) For
purposes of Section 5.1, a business enterprise with which the Executive becomes
associated shall be considered in substantial direct competition, if such entity
competes with the Company or its subsidiaries in any business in which the
Company or any of its subsidiaries is now engaged and is within the Company's
or
the subsidiary’s market area as of this date.
5.1(c)
During
the one (1) year period immediately following the Date of Termination, the
Executive shall not directly or indirectly, solicit or recruit for employment,
any person or persons who are employed by the Company or one of its subsidiaries
or affiliates, or who were so employed at any time within a period of six (6)
months immediately prior to the date the Executive’s employment terminated, or
otherwise interfere with the relationship between any such person and the
Company; nor will the Executive assist anyone else in recruiting any such
employee to work for another company or business or discuss with any such person
his or her leaving the employ of the Company or engaging in a business activity
in competition with the Company. This provision shall not apply to secretarial,
clerical, custodial or maintenance employees.
5.2 Confidential
Information.
The
Executive shall hold in a fiduciary capacity for the benefit of the Company,
and
under a relationship of trust and confidence, all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained
by
the Executive during the Executive's employment by the Company and which shall
not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). This includes
but is not limited to internal financial information that is not publicly
available, business plans and strategies, acquisition and divestiture plans
and
strategies, costs, pricing, business proposals, trade secrets, and information
concerning the needs, purchasing history, concerns, key contacts, requirements
and credit of customers After termination of the Executive's employment with
the
Company, the Executive shall not, without the prior written consent of the
Company, or as may otherwise be required by law or legal process, use, or
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. In no event shall an asserted
violation of the provisions of this Section constitute a basis for deferring
or
withholding any amounts otherwise payable to the Executive under this
Agreement.
Section
6: Successors.
6.1 Successors
of the Executive.
This
Agreement is personal to the Executive and, without the prior written consent
of
the Company, the rights (but not the obligations) shall not be assignable by
the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
6.2 Successors
of Company.
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 the Company to assume expressly 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. As used in this
Agreement, “Company” shall mean the Company as hereinbefore defined and
any
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successor
to its business and/or its assets which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
Section
7: Miscellaneous.
7.1 Notice.
For
purposes of this Agreement, notices and all other communications provided for
in
the Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses as
set
forth below; provided that all notices to the Company shall be directed to
such
other address as one party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
Notice
to the Executive:
▇▇▇▇
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▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Notice
to Company:
▇▇▇▇▇▇▇▇
Corporation
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Secretary
7.2 Validity.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
7.3 Withholding.
The
Company may withhold from any amounts payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
7.4 Entire
Agreement; Waiver.
This
Agreement contains the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior oral and written communications
and agreements between the parties concerning such subject matter. Neither
this
Agreement nor any of its terms may be amended, waived, or added to except in
a
writing signed by the Company (through a designated and authorized officer
other
than the Executive) and the Executive. The Executive's or the Company's failure
to insist upon strict compliance with any provision hereof or any other
provision of this Agreement or the failure to assert any right the Executive
or
the Company may have hereunder shall not be deemed to be a waiver of such
provision or right or any other provision or right of this
Agreement.
7.5
Section
409A Compliance. The
parties intend that all provisions of this Agreement comply with the
requirements of Code Section 409A to the extent applicable. No provision of
this
Agreement shall be operative to the extent that it will result in the imposition
of the additional tax described in Code Section 409A(a)(1)(B)(i)(II) and the
parties agree to revise the Agreement as necessary to comply with Section 409A
and fulfill the purpose of the voided provision. Nothing in this Agreement
shall
be interpreted to permit accelerated payment of nonqualified deferred
compensation, as defined in Section 409A, or any other payment in violation
of
the requirements of such Code Section 409A.
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IN
WITNESS WHEREOF, the Executive and the Company, pursuant to the authorization
from its Board, have caused this Agreement to be executed in its name on its
behalf, all as of the day and year first above written.
“Executive”
/s/
▇.
▇.
▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇
|
“Company”
▇▇▇▇▇▇▇▇
CORPORATION
By
/s/
▇▇▇▇▇▇▇ ▇.
▇’▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇
Title:
Chairman & CEO
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