CHANGE IN CONTROL AGREEMENT
Exhibit 10.1
THIS AGREEMENT
is made and entered into as of March
8, 2021 by and
between THE EASTERN
COMPANY, a Connecticut corporation with principal offices at 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, and XXXXX
XXXXXX.
A.
Employer is engaged in the
Employer's Business;
B.
The Executive is
employed by Employer
is the position of Chief Operating Officer.
C.
Employer and Executive desire to enter into this Agreement, providing for
certain benefits to the Executive in
the event of a
change in control of
the Employer,
effective as of the
date set forth above, as
follows:
l. Change
in
Control
Benefits. Executive
shall be entitled to
Change in Control Benefits as follows:
(a)
Eligibility
for
Change
in
Control
Benefits.
(i)
General Rules.
(A) Subject
to the requirements set
forth in this Section
1, Employer
hereby grants
to Executive the
Change in Control
Benefits described
herein.
(B) Executive
shall be eligible to
receive the Change in
Control Benefits
set forth in this Section 1
if his employment with Employer terminates due to
an Involuntary Termination without Cause for a
reason other than his death,
or as a
result of a Constructive Termination, which in either case
occurs: (I) during the period not to exceed twenty-four
(24) months after the effective date
of a Change in Control;
or (II) before the
effective date of a Change in Control, but
after the first date on which the Board and/or
senior management of Employer
has entered into formal negotiations with a
potential acquirer that results in the consummation
of a Change in Control; provided, however , that in no event shall a termination of employment occurring more
than one (1) year before
the effective date of
a Change in Control be
covered by this Section
1.
(ii) Other
Requirements. In
order to be eligible to receive
benefits under Section
l(b)(i)(B), Section
l(b)(i)(C) or Section
l(b)(i)(D), Executive must
deliver to Employer an
executed Release and
Waiver, and a
resignation from all
offices, directorships and fiduciary positions
with Employer, its Affiliates and employee
benefit plans. No payments
shall be made under Section
l(b)(i)(B),
Section
l(b)(i)(C) or Section
l(b)(i)(D) prior
to the last day of any waiting period or
revocation period required
by applicable
law or under
the provisions
of the Release and Waiver in
order for the Release
and Waiver to be effective.
(iii) Exceptions. Notwithstanding
the foregoing,
if: (A) Executive's employment is terminated by Employer for Cause at any time; (B)
Executive terminates
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his employment voluntarily for a
reason other than a Constructive Termination (including termination of employment
because of Executive's
death); or
(C) Executive'
s employment terminates for any reason,
whether initiated by
Executive or
Employer, more than
twenty-four
(24) months after the
effective date of a
Change in Control, or before
the beginning of formal
negotiations with a potential
acquirer of Employer's business, or
more than one year before the effective date
of a Change in Control
(even if formal negotiations with a potential acquirer have
begun), then Executive shall not be
eligible to receive Change in Control Benefits under this Section
1.
(b) Amount
and
Type of
Benefits; Limitations and
Exceptions. Benefits
payable under this Section
1 are as follows
and are subject
to the following limitations
and exceptions:
(i) Change
in
Control
Benefits.
If Executive has satisfied the eligibility requirements of Section
l(a), Employer
shall pay to Executive (and, in
the event of
his death prior to payment, to his
estate (if applicable)),
the following
benefits:
(A) Any
Accrued Compensation shall be paid
to Executive
in full in accordance
with the Employer's normal payroll practices.
(B) An
amount equal to the Executive's Separation Pay shall be paid
to Executive
in a single payment, in
cash, on the later of the date that is three months
after the Termination Date or the effective date of the
Change in Control.
(C) Vesting
of equity and equity-based awards granted under the Employer's stock incentive plans, whether vesting of such awards is time-based or performance based, in accordance with (and to the
extent permitted under) the terms of
the applicable
incentive award agreements.
(D) For
the Continuation Period, Employer
shall, at its
expense, continue on behalf of
the Executive and
Executive' s dependents
and beneficiaries any medical, dental, vision, hospitalization and long term care benefits
provided to Executive
immediately prior to the
Termination Date; provided, however, that Employer's obligation to provide continuation coverage under the Employer's group health plans shall arise only if
Executive and his dependents are eligible
for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") and
Executive and his
dependents timely elect
coverage under
COBRA. Accordingly, if
Executive's
Termination Date precedes the
effective date of
the Change in Control and
Executive did not timely elect COBRA coverage prior to becoming eligible
for benefits under this
Section
1, no reimbursements or payments for continuation coverage under Employer' s
group health plans will be made
by Employer under this Section
l(b)(i)(D) (unless
Executive has
received COBRA benefits following his
Termination Date and/or
is currently
receiving those benefits
at the time of a
Change in Control, in
which case Employer
will reimburse
any past COBRA premium costs
and will pay for future
coverage m accordance
with the terms
of this Section
1(b)(i)(D) for
the period specified above).
The coverage and benefits (including deductibles and costs) provided hereunder during the Continuation Period shall be no less favorable to Executive
and Executive's dependents and
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beneficiaries than the coverage and
benefits made available immediately prior to the
Termination Date. Employer's
obligation hereunder
with respect to the foregoing benefits shall be
limited to the extent that Executive obtains any such benefits
pursuant to a subsequent
employer's benefit
plans, in which case Employer may
reduce the coverage of any benefits
it is required to provide Executive hereunder, as
long as the
aggregate coverages and benefits of the
combined benefit plans are no less favorable to Executive
than the coverages and benefits required to be provided
hereunder.
The coverage and benefits (including deductibles and costs)
provided hereunder during the
Continuation Period to
Executive's dependents and beneficiaries shall
not be affected by
Executive's coverage under
Medicare.
To the extent the coverage and
benefits provided hereunder extend beyond
the coverage period required under COBRA, then,
as required by Code
Section 409A: (I) the
post-termination medical benefits payable under this
Section
l(b)(i)(D) are
objectively determinable; (II) such
post-termination medical benefits are provided
for a specified period (i.e.,
the Continuation Period); (III)
the amount of the post-termination medical benefits
provided in one year does
not affect the amount of post-termination medical benefits
available; (IV)
the reimbursement of
any post-termination medical expenses must
be made no later than the end of the year following the
year in which the expenses
were incurred;
and (V) the
right to receive the post-termination medical benefits
is not subject
to liquidation or
exchange for another
benefit.
(ii) Other
Benefits. All
fringe benefits not otherwise covered
by this Section 1
(such as,
but not limited to, pension/retirement, life
insurance, disability coverage and other
welfare benefits) shall
terminate as of
Executive's Termination Date (except to the
extent that the
specific plans or programs
provide for extended coverage or if any
conversion privilege is
available thereunder).
(iii)
Parachute Payments.
(A) Notwithstanding
the above,
if any payment or benefit that
Executive would
receive under this Section
1, when
combined with any
other payment or benefit he
receives that is contingent upon a Change
in Control (collectively, the "CIC
Payment") would: (A)
constitute a "parachute
payment"
within the meaning of Section 280G of
the Code; and (B)
but for this sentence, be subject to the
excise tax imposed by Section 4999
of the Code, then such CIC Payment shall be
either: (X) the
full amount of such
CIC Payment;
or (Y) such lesser amount
(with CIC Payments being
reduced in the order and priority established
by the Compensation Committee) as would
result in no portion
of the CIC
Payment being subject to
the Excise Tax,
whichever of the foregoing amounts, taking into
account the applicable
federal, state and local employment taxes,
income taxes, and
the Excise Tax
results in Executive's receipt, on
an after-tax
basis, of the greater
amount of the
CIC Payment
notwithstanding that all
or some portion of the
CIC Payment may be subject to the Excise Tax. Executive
shall be solely
responsible for the
payment of all personal tax liability that is incurred
as a result of the
payments and
benefits received under this
Section
1, and Executive
will not be reimbursed by Employer for
any such payments.
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(B) Employer
shall attempt to cause its accountants to make all of the
determinations required to be made under this Section
l(b)(iii), or, in
the event Employer's
accountants will not perform
such service, Employer may select another
professional services
firm to perform the calculations.
Employer shall request that the accountants or firm provide
detailed supporting
calculations both to Employer
and Executive prior to the Change in
Control if administratively feasible or subsequent to
the Change in Control if events occur
that result in parachute payments to Executive at
that time. For purposes of making the calculations required by
this Section
1(b)(iii) the accountants or
firm may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith
determinations concerning the application of the Code. Employer
and Executive shall
furnish to the accountants or
firm such information and documents as the accountants
or firm may reasonably request in order to make a
determination under this Section
l(b)(iii). Employer
shall bear all costs the
accountants or firm may reasonably incur in
connection with any calculations contemplated by this
Section
l(b)(iii). Any
such determination by Employer's accountants or other firm shall be
binding upon Employer
and Executive.
(c)
Section 409A.
(i) The
Change in Control
Benefits shall be paid
on the date or dates,
and in the form, set
forth in Section l(b)
above.
(ii) Notwithstanding
anything to the contrary
herein, in the event the
Change in Control
Benefits are subject to the provisions
regarding deferred compensation set forth in Section 409A, then any
payments to Executive
shall not be made until the
earliest date sufficient
to avoid the imposition of tax or
penalties under Section 409A.
(d) Right
To Interpret Change
in Control
Benefits; Binding Nature
Of
Change
in Control
Benefits;
Legal Fees and Expenses.
(i) Binding
Effect
On
Successor To Employer. This Section
1 shall be
binding upon any successor
or assignee, whether
direct or indirect,
by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of Employer, or
upon any successor
to Employer as the result of a Change in
Control, and any such
successor or
assignee shall be
required to perform Employer's obligations under this
Section
1, in the same manner
and to the same
extent that Employer would
be required to perform if no such succession or assignment or Change in Control had
taken place. In such
event, the
term "Employer,"
as used in this Section
1, shall mean
Employer as hereinafter defined and any
successor or assignee as described above which by reason hereof
becomes bound by the terms and provisions of this
Section 1, and the term "Board"
shall refer to the board of directors
of any such
surviving or continuing entity.
(ii) Legal
Fees and Expenses. The
Employer shall reimburse the Executive for the Executive’s reasonable legal fees incurred in a
good faith dispute of any issue
relating to the Change
in Control Benefits that is resolved in favor of the
Executive.
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2.
Non-Competition
and Non-Disclosure
(a) Notwithstanding
any other provisions in this Agreement nothing in this Agreement
shall prohibit Executive from acquiring or owning without
disclosure to Employer less than two percent (2%) of the
outstanding securities of any class of any competing corporation
that are listed on a national securities exchange or traded in the
over-the-counter market.
(b) During
and after the Term of Employment, Executive covenants and agrees that Executive shall
keep strictly confidential all non-public proprietary
information which
Executive may obtain during the course
of Executive's employment with respect to the business
practices, finances, developments,
marketing, sales,
customers, affairs, trade
secrets and other confidential information
of Employer,
which shall
remain Employer's exclusive property,
and Executive shall not disclose the same, except solely in the
course of business on behalf of and for the benefit of
Employer
pursuant to this Agreement,
except to the extent that the same is
then: (i) publicly available without
any act of Executive
through a party not
violating its obligations to Employer; or (ii)
required to be disclosed under the laws of the
United States or any
state in any judicial or administrative
proceeding. Executive
further agrees that immediately upon
his Termination
Date (irrespective of the
time, manner or cause of termination), Executive
will surrender and
deliver to
Employer all:
(i) lists,
books, records, memoranda
and data, computer discs, computer access codes, magnetic
media, and software of
every kind relating to or in connection with Employer's Business and the customers and suppliers of
Employer; and (ii) all
of Employer's
personal and physical
property.
(c) During
the Term of Employment
and for a period of
twelve (12) months thereafter, Executive covenants and
agrees that Executive
shall not compete, directly or indirectly,
with Employer in: (i)
Employer's Business; or (ii) such other
business as in the reasonable opinion of the Board is
a competitor of
Employer.
(d) During
the Term of
Employment and for
a period of eighteen (18)
months thereafter,
Executive covenants and
agrees that Executive shall not, alone
or with others, directly or indirectly:
(i) solicit
for Executive's benefit or the benefit of any person
or organization
other than Employer,
the employment or other
services of any
executive or
consultant of
Employer; or
(ii) solicit
for Executive's benefit or the benefit
of any person or
organization other than
Employer, the employment of any
executive of any customer of Employer.
3.
Section
409A
(a) This
Agreement is intended to comply with
Section 409A or an
exemption thereunder
and shall be
construed
and administered in accordance with Section
409A. Notwithstanding any
other provision
of this Agreement, payments provided under this Agreement may only be made
upon an event and
in a manner that
complies with
Section 409A
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or an applicable exemption. Any payments under
this Agreement that may be excluded from Section 409A either
as separation
pay due to an involuntary
separation from service
or as a short term deferral
shall be excluded from Section 409A to the maximum extent
possible. For
purposes of Section
409A, each installment payment provided under this Agreement shall
be treated as a separate payment. Any
payments to be made under this Agreement upon a termination of
employment shall
only be made upon a
"separation from service" under
Section 409A. Notwithstanding the foregoing, the Company makes no
representations that the payments and benefits provided under this
Agreement comply with Section 409A, and in no
event shall the Company
be liable for all or any portion of any
taxes, penalties, interest, or other expenses that
may be incurred
by the Executive on
account of non-compliance with Section 409A.
(b) Notwithstanding
any other provision
of this Agreement, if any
payment or benefit provided to the Executive in connection
with his termination of employment is determined to
constitute "nonqualified deferred
compensation"
within the meaning of Section 409A and
the Executive is
determined to be a "specified
employee" as defined in Section
409A(a)(2)(b)(i),
then such payment or benefit
shall not be paid until the
first payroll date
to occur following the six-month
anniversary of the separation from service
or, if earlier, on the Executive's
death (the
"Specified Employee Payment Date"). The aggregate
of any payments that would otherwise have
been paid before the Specified
Employee Payment Date shall be paid to the Executive in a
lump sum on the Specified Employee Payment Date and
thereafter, any
remaining payments shall
be paid without delay in
accordance with their original schedule.
Any reimbursement of expenses
shall occur no later
than the end of the
calendar year following the calendar
year in which the
expense is incurred
(or such earlier date as applies under the Company's
business expense
reimbursement policy) and the
reimbursement in one year shall not
affect the amount of reimbursement available in any
subsequent year.
4. Definitions.
Capitalized terms used
in this Agreement shall
have the meanings set forth below, unless
otherwise indicated:
"Accrued
Compensation" means an
amount which includes all amounts earned or accrued through the
Termination Date but not paid as of the Termination Date,
including: (i) the Annual Base Salary; (ii) reimbursement for
reasonable and necessary expenses incurred by the
Executive on behalf
of the Employer during the period ending on the
Termination Date;
(iii) any accrued but unused
vacation pay; (iv) the
unpaid portion of any earned annual
bonus for the
fiscal year preceding the Executive's Termination Date;
(v) the actual
bonus the Executive
would have received if he had stayed employed for the full year, multiplied by a fraction the numerator of
which is the
number of days during
the year of termination that the
Executive was employed
by Employer and which
denominator of which is
the total number of days
in the year of
termination; and (vi) all of the
Executive's vested
accrued employee benefits, including but
not limited to equity benefits, subject to the
applicable plan
documents and grant
documents.
"Affiliate" means
any parent corporation or subsidiary
corporation of Employer,
whether now or hereafter existing, as those
terms are defined in
Sections 424(e) and (f),
respectively, of the
Code.
"Agreement" means
this agreement
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"Annual
Base
Salary" means
the Executive’s
annual base salary as in
effect from time
to time.
"Board" means
the Board of Directors
of The Eastern Company.
"Cause" means:
(A)
Executive's breach of the
restrictive covenants set forth in Section 2
hereof;
(B) Failure
by
Executive to
comply in any material respect with the terms of this
Agreement or any written policies or directives of the Board as
determined by the Board in good
faith in its sole discretion, which
failure has not been corrected by Executive after written
notice from Employer of such failure specifying in reasonable
detail how Executive has
failed to comply. Except for a failure
which, by its
nature, cannot reasonably be expected to be cured within
ten (10) days, the Executive shall
have ten (10) days from the delivery of written notice by
the Employer within which
to cure any acts constituting
Cause. Notwithstanding the foregoing, a failure otherwise
described in this subsection
(B) shall not
constitute "Cause" for purposes of the
Change in Control Benefits set forth in Section
1 of this
Agreement, unless such failure
was undertaken willfully and in
bad faith by
Executive;
(C) Executive
is convicted of, pleads guilty to, or
confesses to any felony or any act of fraud, misappropriation or
embezzlement; or
(D) Executive
engages in a fraudulent act or dishonest act to the damage or
prejudice of Employer or its affiliates, or engages
in conduct or activities damaging to the
property, business or reputation of
Employer or its
affiliates, all
as determined by the Board in good faith
in its sole
discretion.
"Change in
Control" means:
(A) a
sale, lease, license
or other disposition of all or
substantially
all of the assets
of Employer;
or
(B) a
consolidation or merger of Employer
with or into
any other corporation or
other entity or person,
or any other corporate
reorganization,
in which the shareholders
of Employer immediately prior to such consolidation, merger or
reorganization, own less
than fifty percent (50%) of
the outstanding voting power
of the surviving entity or its
parent following the consolidation,
merger or reorganization; or
(C) any
transaction or series of related
transactions involving a person or entity, or a
group of affiliated persons or
entities (but excluding any employee
benefit plan or related trust
sponsored or maintained by Employer or an Affiliate) in
which such persons or
entities that were
not shareholders of Employer immediately
prior to their acquisition of
Employer securities
as part of such transaction become the owners, directly or
indirectly, of
securities of
Employer representing more than fifty percent
(50%) of the combined voting power
of Employer's
then
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outstanding securities other than by virtue
of a merger,
consolidation or similar
transaction and other than as
part of a private financing
transaction by Employer;
or
(D) a
Change in the Incumbent
Board. For purposes of the
Change in Control Benefits, a
Change in the
Incumbent Board shall
occur if the
existing members of the
Board as of the Effective
Date (the "Incumbent
Board") cease to constitute at least a
majority of the members
of the Board; provided, however,
that any new Board member
shall be considered
a member of the
Incumbent Board for this
purpose if the appointment or election (or
nomination for such election) of the new Board member was approved or recommended by a majority vote
of the members of the
Incumbent Board who are
then still in office.
"Change
in
Control
Benefits" means
the benefits set
forth in Section
l(b).
"CIC
Payment" has the
meaning set forth
in Section
l(b)(iii) herein.
"Code" means
the Internal Revenue Code
of 1986, as
amended.
"Compensation
Committee" means
the Compensation Committee
of the Board
of Directors of Employer.
"Constructive
Termination" means
a termination
by Executive of his employment
with the Employer due to
the occurrence of any of
the following events or
conditions:
(A) a
change in Executive's
position or responsibilities (including reporting responsibilities) which represents: (1) a material adverse change from
Executive's position or responsibilities as in effect
immediately preceding the effective date
of a Change in Control or
at any time thereafter; or
(2) the assignment
to Executive of any
duties or responsibilities which are materially and
adversely inconsistent
with Executive's position or responsibilities as in
effect immediately preceding
the effective
date of a
Change in Control or
at any time thereafter; provided that
the change does not occur in
connection with the termination of Executive's
employment for
Cause, or the termination of Executive's
employment because
of Executive's
death, or a voluntary termination by Executive other than as a result
of a Constructive
Termination;
(B) a
material reduction in
Executive's Annual Base Salary or
any material
failure to pay Executive any
compensation or benefits to which
Executive is entitled
within five
(5) days
of the date due;
(C) Employer's
requiring Executive to
relocate his
principal worksite to any
place more than fifty
(50) miles from Cleveland, Ohio, except for reasonably
required travel on the
business of Employer or its
Affiliates which is not materially greater than such travel requirements prior to
the Change in Control;
(D) the
failure by Employer to
continue in effect (without reduction in benefit
level and/or reward opportunities) any material compensation or
employee benefit plan in
which Executive was participating immediately preceding
the effective date of a Change
in Control
or
-8-
at any time thereafter, unless such plan is
replaced with a
plan that provides substantially equivalent compensation or benefits to
Executive;
(E) any
material breach by Employer of any Change in Control Benefits set forth
in Section 1
of this Agreement;
(F) the
failure of Employer to obtain an agreement from any
successors and assigns to
assume and agree to perform the obligations created under the
Change in Control
Benefits set forth
in Section 1
of this Agreement, as contemplated
in Section 1(d)
hereof.
Executive must notify Employer of the
circumstances on which a Constructive Termination is purportedly based within
ninety (90) days of the initial occurrence of any such
event. Employer
shall have thirty (30) days from the
date of such notice to cure such event or condition.
"Continuation
Period"
means a period of twelve
(12) months,
as determined by Employer, for
providing certain welfare benefits to
Executive following the
termination of Executive's employment.
"Effective
Date" means
the date of this Agreement.
"Employer" means
The Eastern Company, a
Connecticut corporation, and any successor thereto.
"Employer’s
Business" means the business of
developing, manufacturing, and/or marketing
industrial hardware, security products and metal castings.
"Excise
Tax"
means the excise tax
imposed by Section
4999 of the
Code.
"Executive" means
Xxxxx Xxxxxx.
"Involuntary
Termination without Cause" means
the termination of Executive's employment which is
initiated by Employer
for a reason other than
Cause.
"Release
and
Waiver" means
a release and waiver
agreement in favor of the
Employer in form and substance
reasonably satisfactory to the
Employer.
"Section
409A"
means Section 409A of the
Code.
"Separation
Pay" means an
amount equal
to one (1) times
the sum of: (i) Executive’s Annual
Base Salary; and
(ii) Executive's
target annual bonus
for the year of
Executive’s Termination Date (which target annual bonus, for
this purpose, shall
not be less than
70% of Executive’s Annual
Base Salary).
"Specified
Employee Payment Date"
has the meaning set forth in Section
3(b).
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"Term
of
Employment" means
the period during which
the Executive is employed by the Employer.
"Termination
Date" means
the last date on
which Executive
is in active pay status
as an employee with
Employer. A holiday
cannot constitute a
Termination Date
unless Executive actively provided services for Employer on such holiday.
5.
Resolution
of
Disputes
All disputes
arising hereunder shall be finally determined by arbitration in
the State of Connecticut
in accordance with the
rules of the American
Arbitration Association
then obtaining, or
any successor
organization thereto. Such
arbitration shall be
conducted by
a three person panel,
one of whom is selected by each
party and
the third selected by
the two arbitrators or, if the arbitrators cannot agree, selected from the
lists of the American Arbitration Association. The arbitrators
shall not have the power
to abrogate, alter,
modify or amend
any of the provisions
of this
Agreement. Any
award entered by
the arbitrators shall be
final and judgment thereon may be
entered in any court having jurisdiction. Each
party shall bear its own
costs in connection with such arbitration.
However,
the prevailing party
shall be
entitled to recover
from the non- prevailing party all reasonable
costs incurred
including court costs,
arbitration costs,
attorneys' fees,
and all other related expenses
incurred in such litigation. Notwithstanding the foregoing, Employer
shall have the right to seek
injunctive relief to
maintain the status
quo and/or to
prevent violation of the
terms thereof (including but
not limited to the
covenants in
Section
2) pending final determination of the rights
and remedies of
the parties in
an arbitration proceeding.
6.
Notices
All notices shall be
in writing and
shall be delivered personally
(including by a courier or an
overnight receipted
courier service such as UPS or
Federal Express), or sent
by facsimile transmission
(with appropriate documented
receipt thereof), or sent by
certified, registered or express
mail, postage
prepaid,
to the parties at
their address set
forth at the beginning of this Agreement,
with Employer's
copy being sent to
the Chairman of
the Board
of the Employer at the
Employer's
then principal office.
Any such
notice shall be deemed given
when so delivered
personally, or if sent
by facsimile transmission, when
transmitted,
or, if mailed,
forty-eight (48)
hours after the date
of deposit in the mail. Any party
may, by
notice
given in accordance
with this Section
6
to the other party,
designate another address or
person for receipt of notices hereunder.
7.
Miscellaneous
(a) This
Agreement shall
be governed in all
respects, including
validity,
construction, interpretation
and effect, by Connecticut
law (without
regard to the
choice of law
principles thereof).
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(b) This
Agreement may be amended, superseded, canceled,
renewed or extended,
and the terms hereof may be
waived, only by a
written instrument signed by an
authorized representative of
Employer and by Executive. No such written instrument shall be
effective unless it expressly recites that it is intended
to amend, supersede, cancel,
renew or extend this
Agreement or to waive compliance with one or
more of the terms hereof, as
the case may
be. No delay on the part of any party
in exercising
any right, power or
privilege hereunder shall
operate as a waiver thereof, nor
shall any waiver
on the part of any party
of any such right,
power or privilege,
or any single
or partial exercise of any such right,
power or privilege, preclude any further exercise thereof or the exercise of any
other such right,
power or privilege. The
rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies
that any party may otherwise have at law
or in equity.
(c) If
any provision or
any portion of any provision of this
Agreement, or the
application of any such
provision or any portion thereof
to any person or
circumstance, shall be held
invalid or unenforceable, the remaining portion of such provision and the remaining provisions of this
Agreement, or the application of such
provision or portion
of such provision as is held
invalid or unenforceable to persons or circumstances
other than those as
to which it is held invalid or
unenforceable,
shall not be affected thereby, and such provision
or portion of any
provision as shall have
been held invalid or
unenforceable shall be
deemed limited or
modified to the extent
necessary to make it valid
and enforceable. In no
event shall this Agreement
be rendered void or
unenforceable in total.
(d) The
headings to the Sections of this Agreement are for convenience of
reference only and
shall not be given
any effect in the
construction or enforcement
of this Agreement.
(e) In
the event of a
Change in Control, the
terms of this Agreement
shall inure to the benefit
of, and be
assumed by, the successor of Employer or
the acquiring
person in such Change in Control transaction. This Agreement shall not be assignable by
Executive, but it shall
be binding upon and
shall inure to the benefit of his heirs,
executors, administrators and legal
representatives.
(f) This
Agreement constitutes the entire agreement and
understanding between the parties and
supersedes all prior
discussions, agreements
and undertakings, written or
oral, of any and every
nature with respect
thereto.
(g) This
Agreement may be executed by the
parties hereto in separate
counterparts which together shall constitute one and
the same instrument.
[The signature page follows.]
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[Signature Page to Change in Control Agreement}
IN WITNESS
WHEREOF, this Agreement has been executed as of
the date stated at the beginning
of this Agreement.
By:
/s/August M.
Vlak
Name:
AUGUST X. XXXX
Title:
PRESIDENT & CEO
Date: MARCH 8,
2021
EXECUTIVE
/s/Xxxxx X. Xxxxxx
XXXXX
X. XXXXXX
Date:
March 9, 2021
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