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EXHIBIT 10.4 (c)
EMPLOYMENT AGREEMENT
AGREEMENT by and between CLARCOR Inc., a Delaware corporation (the
"Corporation") and XXXXXX XXXXXXX (the "Executive") dated as of July 1, 1997.
WHEREAS, Executive currently serves as President and Chief Operating
Officer of the Corporation; and
WHEREAS, the Corporation desires to enter into this Agreement to assure
the benefits of Executive's future services to the Corporation, and Executive
is willing to commit to render such services, upon the terms and conditions set
forth below.
It is therefore mutually agreed as follows:
1. Employment. The Corporation agrees to employ Executive as President
and Chief Operating Officer and Executive agrees to serve the Corporation
in such capacities, upon the terms and conditions and for the period of
employment hereinafter set forth. Throughout the Employment Period (as defined
below), subject to the supervision of the Board of Directors (the "Board")
and the Chief Executive Officer of the Corporation, Executive shall exercise
such authority and perform such duties as are commensurate with the authority
being exercised and the duties being performed by Executive immediately
preceding the effective date of this Agreement. Executive shall provide
such services at the headquarters of the Corporation in Rockford, Illinois,
except as otherwise expressly provided herein. Throughout the Employment
Period, unless otherwise agreed in writing by Executive and the Corporation,
the Corporation shall neither demote Executive nor assign to Executive any
duties or responsibilities that are inconsistent with his position, duties,
responsibilities and status as President and Chief Operating Officer.
During the Employment Period, and excluding any periods of vacation and sick
leave to which Executive is entitled, Executive agrees to devote reasonable
attention and time during normal business hours to the business and affairs of
the Corporation and, to the extent necessary to discharge the responsibilities
assigned to Executive hereunder, to use Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the Employment
Period it shall not be a violation of this Agreement for Executive to (i) serve
on corporate, civic or charitable boards or committees, (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions and (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of Executive's responsibilities as an employee
of the Corporation in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities have been
conducted by Executive prior to the effective date of this Agreement, the
continued conduct of such activities (or conduct of activities similar in
nature and scope thereto) subsequent to the effective date of this Agreement
shall not thereafter be deemed to interfere with the performance of Executive's
responsibilities to the Corporation.
2. Employment Period. The term of Executive's employment under this
Agreement shall commence as of the date hereof, and shall expire, subject to
earlier termination of employment as hereinafter provided, upon the occurrence
of the annual meeting of the Board held in March, 2000; provided, however, that
unless the Board shall take affirmative action to the
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EMPLOYMENT AGREEMENT
contrary and the Corporation shall give prior written notice thereof to
Executive, as of November 29, 1998, and as of the first day of each succeeding
fiscal year of the Corporation, the term of this Agreement shall be extended
automatically (for a period of approximately one additional year) to the date
of the annual meeting of the Board held in March 2001, and each year thereafter
(the "Employment Period").
3. Compensation, Compensation Plans, Benefits and Perquisites. During the
Employment Period, Executive shall be compensated as follows:
(a) He shall receive an annual salary at a monthly rate at least
equal to the highest salary rate he has attained immediately preceding
the effective date of this Agreement on an annualized basis, with the
opportunity for increases, from time to time thereafter, in the
discretion of the Compensation and Stock Option Committee of the Board
(the "Committee") in accordance with the Corporation's regular practices.
The term "salary" as utilized in this Agreement shall refer to such
annual salary as increased. Notwithstanding the foregoing, if in the
Committee's judgment, the Corporation is meeting its budgeted target for
sales and net earnings, Executive's salary shall be increased, at a
minimum. to the following amounts at the times provided below:
October, 1997 - $302,000
October, 1998 - $326,268
October, 1999 - $358,895
(b) He shall be eligible to participate on a reasonable basis in the
Corporation's 1994 Incentive Plan, Key Management Incentive Plan, Long
Range Performance Share Plan and other bonus and incentive compensation
plans (whether now or hereinafter in effect.) Except as provided below,
Executive's participation in the 1994 Incentive Plan, the Key Management
Incentive Plan and the Long Range Performance Share Plan shall be on the
same basis and terms as in effect immediately preceding the effective date
of this Agreement and Executive's participation in any hereinafter
established plans shall be on the same basis and terms as other executive
officers of the Corporation. No additional compensation provided under any
of such plans shall be deemed to modify or otherwise affect the terms of
this Agreement or any of Executive's entitlements hereunder.
(c) Throughout the Employment Period, pursuant to the terms of the
1994 Incentive Plan, the Key Management Incentive Plan and the Long Range
Performance Share Plan, Executive shall receive at least the following
awards and incentives:
(i) Executive shall receive a stock option grant of 60,000
shares of the Corporation's common stock at the meeting of the
Committee to be held in December of 1997 and additional stock option
grants of 30,000 shares at each of the meetings of the Committee to be
held in December of 1998 and 1999, provided that for the fiscal year
just ended, the Corporation's budgeted target for sales and net
earnings shall have
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EMPLOYMENT AGREEMENT
been met. The options shall contain the provisions commonly
contained in executive options awarded by the Corporation, including
an exercise price equal to the fair market value of the Corporation's
common stock on the date of grant and ratable vesting over a six-year
period. In the event of a Change of Control (as defined in Section 8),
all options shall become fully vested, and any options to which
Executive has become entitled pursuant to this provision but which
have not yet been granted by the occurrence of the Change of Control,
shall be granted immediately and shall be fully vested.
(ii) Executive's entry, target and maximum annual incentive
under the Key Management Incentive Plan shall be as follows:
Fiscal Year
Ending in Entry Target Maximum
----------- ----- ------ -------
1997 20 45 70
1998 25 52.5 80
1999 30 60 90
(iii) The multiplier under the Long Range Performance Share Plan
shall be as follows:
Fiscal Year
Ending in Multiplier
----------- ----------
1997 36.67
1998 38.33
1999 40.00
(d) He shall be entitled to participate in all employee benefit
plans, practices and programs maintained by the Corporation and made
available to employees generally, including, without limitation, all
pension, retirement, savings, medical, hospitalization, disability, dental,
life, or travel accident insurance benefit plans (collectively the "Benefit
Plans"). Executive's participation in such Benefit Plans shall be on the
same basis and terms as are applicable to employees of the Corporation
generally. Such Benefit Plans shall include, but shall not be limited to,
the following:
CLARCOR Inc. Pension Plan
Retirement Savings Plan and Trust (401(k) Plan)
Supplemental Retirement Plan
Monthly Investment Plan
Dental Plan
Health Care Plan
Life Insurance Plan/Supplemental Life Insurance Plan
Disability Plan
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EMPLOYMENT AGREEMENT
(e) Executive shall be entitled to paid vacations in accordance with
the Corporation's vacation policy as in effect from time to time, and to
all paid holidays given by the Corporation to its executive officers.
(f) Executive shall be entitled to all fringe benefits and
perquisites made available by the Corporation to its executive officers,
including but not limited to, participation in the Automobile Plan.
(g) In addition to the amounts of compensation provided elsewhere in
this Agreement, if during the Employment Period the Corporation shall
achieve both (i) quarterly revenues of at least $150,000,000 and (ii) net
profits after tax equal to 6.5% of sales (both as reported on any of the
Corporation's regular quarterly earnings statements prepared in accordance
with Generally Accepted Accounting Principles consistently applied), the
Committee shall perform a special review of Executive's compensation and
shall pay to Executive a lump sum in such amount, if any, as it may
determine in good faith to be equitable. Further, in such circumstance the
Committee may, if it so determines, award to Executive one additional grant
of options under the 1994 Incentive Plan in such amount, if any, as it may
determine in good faith to be equitable. Any payment or grants of options
under this Section 3(g) may be made at any time within the Employment
Period.
4. Termination. Executive's employment with the Corporation may be
terminated by the Corporation or Executive only under the circumstances
described in this Section 4:
(a) Executive may voluntarily terminate his employment hereunder, but
only upon giving at least six months' prior written notice to the Board, in
which case the Employment Period shall terminate on the effective date of
such notice.
(b) Executive's employment hereunder will terminate upon his death.
(c) If Executive is Disabled, the Corporation may terminate
Executive's employment with the Corporation. For purposes of the
Agreement, Executive shall be deemed to have a "Disability" (and to be
"Disabled") if he has been determined by the Incumbent Board (as defined
in Section 8), based on competent medical evidence to have a physical or
mental disability that renders him incapable, after reasonable
accommodation by the Corporation, of performing his duties under this
Agreement.
(d) The Corporation may terminate Executive's employment hereunder at
any time for Cause. For purposes of this Agreement, the term "Cause" shall
mean fraud, misappropriation or intentional material damage to the property
or business of the Corporation or commission of a felony.
(e) Executive may resign at any time for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean an adverse change in the nature or
scope of
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EMPLOYMENT AGREEMENT
Executive's authority, duties or responsibilities from those referred to
in Section 1, a change in location that is more than 50 miles from that
referred to in Section 1, a reduction in total compensation, compensation
plans, benefits or perquisites from those provided in Section 3, or the
breach by the Corporation of any other provision of this Agreement, Board
action to prevent the automatic extension of this Agreement as provided
in Section 2 hereof, or a determination by Executive that as a result of a
Change of Control (as defined in Section 8) and a change in circumstances
thereafter affecting his position, he is unable to exercise the
authorities, powers, function or duties attached to his position and
contemplated by Section 1 of the Agreement. For purposes of this Section
4, a reasonable determination made by Executive in good-faith shall be
conclusive.
5. Termination Payments. In the event of a termination of Executive's
employment with the Corporation and subject to the provisions of Section 4 of
this Agreement, the Corporation shall pay to Executive and provide him with the
following:
(a) If Executive's termination occurs due to death or Disability,
Executive (or his estate or beneficiaries, if applicable) shall be entitled
to any unpaid salary for days worked prior to his date of termination and
payment for unused vacation days (determined in accordance with the
policies of the Corporation as in effect at that time for Corporate
officers) earned prior to the date of termination, and to all other
benefits available to Executive or his estate and beneficiaries under the
Corporation's Benefit Plans as in effect on the date of such termination of
employment.
(b) If Executive's employment is terminated by the Corporation without
Cause or if Executive resigns for Good Reason, Executive shall be entitled
to the following:
(i) The Corporation shall pay to Executive the lump sum present
value of the salary, at the rate required by Section 3(a) as in effect
immediately prior to the date of such termination of employment, to
which he would have been entitled had he remained in the employ of the
Corporation for the remainder of the Employment Period. The
Corporation shall also pay to Executive the average amount of any
incentive compensation and bonuses earned by Executive in the three
years preceding Executive's termination of employment with the
Corporation. Further, Executive shall become fully vested in any stock
options in which Executive had not yet become vested.
(ii) During the remainder of the Employment Period, Executive
shall continue to be treated as an employee under the provisions of
the Corporation's plans referred to in Section 3(b). In addition,
Executive shall continue to be entitled to all benefits and service
credits for benefits, programs and arrangements of the Corporation
described in Sections 3(d) and (f) as if he were still employed during
such period under this Agreement.
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EMPLOYMENT AGREEMENT
(iii) If, despite the provisions of subparagraph (ii) above,
benefits or service credits or the right to accrue further benefits or
service credits under any plan referred to in Section 3(b) or (d)
shall not be payable or provided under such plan to Executive, or his
dependents, beneficiaries and estate because he is no longer an
employee of the Corporation, the Corporation itself shall, to the
extent necessary, pay or provide for payment of such benefits and
service credits for such benefits to Executive, his dependents,
beneficiaries and estate.
The amount of payments provided for in this Section 5(b) shall be
determined by the Accounting Firm (as defined in Section 10) and such
payments shall be made within 30 days after Executive's termination of
employment with the Corporation.
6. Non-Competition and Confidentiality. Executive agrees that:
(a) There shall be no obligation on the part of the Corporation to
provide any further payments or benefits (other than benefits or payments
already earned, accrued or paid) described in Section 5 or Section 9 if,
during the Employment Period, Executive shall be employed by (or become an
owner, director or officer of, or a consultant to) any business which
directly competes with any business of the Corporation or of any of its
subsidiaries at such time; provided, however, that Executive shall not be
deemed to have breached this undertaking if (i) his sole relationship with
such entity consists of his holding, directly or indirectly, an equity
interest in such entity not greater than five percent of such entity's
outstanding equity interest, and (ii) such employment or activity is not
likely to cause serious damage to the Corporation or any of its
subsidiaries at such time; and
(b) During and after the Employment Period, he shall retain in
confidence any confidential information known to him concerning the
Corporation and its subsidiaries and their respective businesses so long as
such information is not publicly disclosed. Notwithstanding the foregoing,
a breach by Executive of this Section 6(b) shall not be used to set-off or
delay amounts payable under this Agreement.
7. No Obligation to Mitigate Damages. Executive shall not be obligated to
seek other employment in mitigating of amounts payable or arrangements made
under the provisions of this Agreement and the obtaining of such other
employment shall in no event effect any reduction of the Corporation's
obligations under this Agreement.
8. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) The acquisition (other than from the Corporation) by any person,
entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 (the "Exchange Act"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 15% or more of either the then outstanding shares of common stock
or the combined voting power of the Corporation's
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EMPLOYMENT AGREEMENT
then outstanding voting securities entitled to vote generally in the
election of directors; provided, however, no Change of Control shall be
deemed to have occurred for any acquisition by any corporation with respect
to which following such acquisition, more than 60% of the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of
the individuals or entities who were the beneficial owners, respectively,
of the then outstanding shares of common stock or the combined voting power
of the Corporation's then outstanding voting securities immediately prior
to such acquisition in substantially the same proportions as their
ownership, immediately prior to such acquisition, of the Corporation's
then outstanding common stock and then outstanding voting securities, as
the case may be; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board, provided that any person becoming a director subsequent to
the date hereof whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office
is in connection with an actual or threatened election contest relating to
the election of the Directors of the Corporation, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be,
for purposes of this Agreement, considered as though such person were a
member of the Incumbent Board; or
(c) Approval by the stockholders of the Corporation of a
reorganization, merger or consolidation, in each case, with respect to
which persons who were the stockholders of the Corporation immediately
prior to such reorganization, merger or consolidation do not, immediately
thereafter, own more than 60% of the combined voting power entitled to
vote generally in the election of directors of the reorganized, merged or
consolidated corporation's then outstanding voting securities, or a
liquidation or dissolution of the Corporation or of the sale of all or
substantially all of the assets of the Corporation.
9. Termination of Executive Following a Change of Control. In the event
the Corporation terminates Executive's employment with the Corporation during
the Employment Period pursuant to or following a Change of Control, Executive
shall be entitled to the salary, compensation and benefits provided to him
under Section 5(b)(i),(ii) and (iii).
10. Certain Additional Payments by the Corporation. The Corporation
agrees that:
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the
Corporation to or for the benefit of Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments
required under this Section 10) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the
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EMPLOYMENT AGREEMENTS
"Code"), or any interest or penalties are incurred by Executive with
respect to such excise tax (such excise tax, together with any such
interest and penalties, and hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by
Executive of all taxes (including, without limitation, any interest or
penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment.
(b) Subject to the provisions of Section 10(c), all determinations
required to be made under this Section 10, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be
made by Coopers & Xxxxxxx L.L.P. (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Corporation and
Executive within 15 business days of the receipt of notice from Executive
that there has been a Payment, or such earlier time as is requested by the
Corporation. In the event that the Accounting Firm is serving as accountant
or auditor for the individual, entity or group effecting the Change of
Control, Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Corporation.
Any Gross-Up Payment, as determined pursuant to this Section 10, shall be
paid by the Corporation to Executive within five days of the receipt of the
Accounting Firm's determination. If the Accounting Firm determines that no
Excise Tax is payable by Executive, it shall furnish Executive with a
written opinion that failure to report the Excise Tax on Executive's
applicable federal income tax return would not result in the imposition of
a negligence or similar penalty. Any determination by the Accounting Firm
shall be binding upon the Corporation and Executive. As a result of the
uncertainty in the application of Sections 4999 and 280G of the Code, it is
possible that a Gross-Up Payment (or a portion thereof) will be paid which
should not have been paid (an "Overpayment") or a Gross-Up payment (or a
portion thereof) which should have been paid by the Corporation will not
have been paid (an "Underpayment").
(c) An Underpayment shall be deemed to occur upon a claim by the
Internal Revenue Service that the tax liability of Executive (whether in
respect of the then current taxable year of Executive or in respect of any
prior taxable year of Executive) may be increased by reason of the
imposition of the Excise Tax on a Payment or Payments with respect to which
the Corporation has failed to make a sufficient Gross-Up Payment. In the
event that the Corporation exhausts its remedies pursuant to this Section
10(c) and Executive thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Corporation to or for the benefit of Executive. Executive shall notify the
Corporation in writing of any claim by the Internal Revenue Service. Such
notification shall be given as soon as practicable but no later than
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ten business days after Executive is informed in writing of such claim
and shall apprise the Corporation of the nature of such claim and the date
on which such claim is requested to be paid. Executive shall not pay such
claim prior to the expiration of the 30-day period following the date on
which he gives such notice to the Corporation (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due). If the Corporation notifies Executive in writing prior to the
expiration of such period that it desires to contest such claim, Executive
shall:
(i) give the Corporation any information reasonably requested
by the Corporation relating to such claim,
(ii) take such action in connection with contesting such claim
as the Corporation shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the
Corporation,
(iii) cooperate with the Corporation in good faith in order
effectively to contest such claim, and
(iv) permit the Corporation to participate in any proceedings
relating to such claim;
provided, however, that the Corporation shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred
in connection with such contest and shall indemnify and hold Executive
harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result
of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 10(c), the
Corporation shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option,
either direct Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Corporation shall determine; provided, however, that if the
Corporation directs Executive to pay such claim and xxx for a refund, the
Corporation shall advance the amount of such payment to Executive, on an
interest-free basis and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or
with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of Executive with respect to which
such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Corporation's control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would
be
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payable hereunder. Executive shall be entitled to settle or contest, as
the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the
Corporation pursuant to Section 10(c), Executive becomes entitled to
receive any refund with respect to such claim, Executive shall (subject to
the Corporation's complying with the requirements of Section 10(c),
promptly pay to the Corporation the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by Executive of an amount advanced by the Corporation
pursuant to Section 10(c), a determination is made that Executive shall
not be entitled to any refund with respect to such claim and the
Corporation does not notify Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
(e) An Overpayment shall be deemed to have occurred upon a "Final
Determination" (as defined below) that the Excise Tax shall not be imposed
upon a Payment or Payments with respect to which Executive had previously
received a Gross-Up Payment. A Final Determination shall be deemed to have
occurred when Executive has received from the internal Revenue Service a
refund of taxes or other reduction in his tax liability by reason of the
Overpayment and upon either (i) the date a determination is made by, or an
agreement is entered into with, the internal Revenue Service which finally
and conclusively binds Executive and the Internal Revenue Service, or in
the event that a claim is brought before a court of competent jurisdiction,
the date upon which a final determination has been made by such court and
either all appeals have been taken and finally resolved or the time for all
appeals has expired or (ii) the statute of limitations with respect to
Executive's applicable tax return has expired. If an Overpayment occurs,
the amount of the Overpayment shall be treated as a loan by the Corporation
to Executive and Executive shall, within ten business days of the
occurrence of such Overpayment, pay the Corporation the amount of the
Overpayment plus interest at an annual rate equal to the rate provided for
in Section 7872(f)(2)(A) of the Code from the date of the Gross-Up Payment
(to which the Overpayment related) was paid to Executive.
(f) Notwithstanding anything contained in this Agreement to the
contrary, in the event it is determined that an Excise Tax will be imposed
on any Payment or Payments, the Corporation shall pay to the internal
Revenue Service as Excise Tax withholding, the amount of the Excise Tax the
Corporation has actually withheld from the Payment or Payments.
11. Deferral of Payments. Notwithstanding anything herein to the contrary,
the Corporation may defer any payment due under this Agreement to the earliest
date upon which the payment can be made and deducted by the Corporation in
light of the provisions of Section 162(m) of the Code.
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12. Expenses. During the Employment Period, the Corporation shall promptly
pay or reimburse Executive for all reasonable expenses incurred by Executive in
the performance of duties hereunder.
13. Full Settlement. The Corporation'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 Corporation may have against
Executive or others. The Corporation agrees to pay, to the full extent
permitted by law, all legal fees and expenses which Executive may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Corporation, 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 Executive about
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
Section 7872(f)(2)(A) of the Code.
14. Payments to Beneficiaries. Any payments due under this Agreement as a
result of Executive's death shall be made to Executive's surviving spouse. If
Executive is not survived by a spouse, payment shall be made to the persons or
entities named by Executive as his beneficiary for payment in a written
document provided to the Corporation prior to his death. In the absence of a
surviving spouse or any such named beneficiary, payment shall be made to
Executive's estate.
15. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to Executive at 0000 Xxxxxxx Xxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, or at the last address he has filed in writing with the
Corporation or, in the case of the Corporation, at its principal Executive
offices.
16. Non-Alienation. Executive shall not have any right to pledge,
hypothecate, anticipate or in any way create a lien upon any amounts provided
under this Agreement; and no benefits payable hereunder shall be assignable in
anticipation of payment either by voluntary or involuntary acts, or by
operation of law, except by will or the laws of descent and distribution.
17. Governing Law. The provisions of this Agreement shall be construed in
accordance with the laws of the State of Illinois.
18. Amendment. This Agreement may be amended or canceled by mutual
agreement of the parties in writing without the consent of any other person
and, so long as Executive lives, no person, other than the parties hereto,
shall have any rights under or interest in this agreement or the subject matter
hereof.
19. Successors.
(a) This Agreement is personal to Executive and without the prior
written consent of the Corporation shall not be assignable by Executive
otherwise than by will or
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the laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Corporation and its successors and assigns.
(c) The Corporation 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 Corporation to
assume expressly and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform it if
no such succession had taken place. As used in this Agreement,
"Corporation" shall mean the Corporation as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise. Any
failure by the Corporation to comply with and satisfy this Section 19(c)
shall constitute a termination as provided in Section 4 of this Agreement,
provided that such successor has received at least ten days prior written
notice from the Corporation or Executive of the requirements of this
Section 19(c).
20. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason,
the remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect.
IN WITNESS WHEREOF, Executive has hereunto set his hand and, pursuant to
the authorization from its Board of Directors, the Corporation has caused these
presents to be executed in its name on its behalf, and its corporate seal to be
hereunto affixed and attested by its Secretary, all as of the day and year
first above written.
/s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx
CLARCOR Inc.
By /s/ Xxxxx X. Xxxxx
--------------------
Xxxxx X. Xxxxx
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Secretary
(Seal)
Page 12
