Change in Control Agreement
EXHIBIT
10.1
January
16, 2009
Xxxxxxx
X. Xxxxxxxx
000
Xxxxxx Xxxxxx
Xxxxx, XX
00000
Dear
Xxxx:
The X.X.
Xxxxxxxx Company (the “Company”) considers it important and in the best
interests of its stockholders to xxxxxx the continuous employment of key
management personnel. In this connection, the Board of Directors of
the Company (the “Board”) recognizes that, as is the case with many publicly
held corporations, the possibility of a change in control of the Company may
exist and that such possibility, and the uncertainty and questions which it may
raise among management, may result in the departure or distraction of key
management personnel to the detriment of the Company and its
stockholders.
The Board
has determined that appropriate steps should be taken to reinforce and encourage
the continued attention and dedication of certain members of the Company's
management, including you, to their assigned duties in the face of potentially
distracting circumstances arising from the possibility of a change in control of
the Company.
In order
to motivate you to remain in the employ of the Company in your current
management position, the Company agrees that you shall receive certain benefits
set forth in this letter agreement (the “Agreement”) in the event of a Change in
Control of the Company.
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1.
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Term
of this Agreement. The term of this Agreement (the
“Term”) shall commence on the date hereof and shall continue in effect
through June 30, 2010; provided, however, that on July 1, 2010 and each
July 1 thereafter, the term of this Agreement shall automatically be
extended for one additional year unless, not later than June 15 of such
year, the Company shall have given written notice that it does not wish to
extend this Agreement (provided that no such notice may be given during
the pendency of a potential Change in Control of the Company); and,
provided further, that if a Change in Control of the Company shall have
occurred during the original or extended Term of this Agreement, this
Agreement shall continue in effect for a period of not less than
thirty-six (36) months beyond the month in which such Change in Control
occurred. Notwithstanding the termination of your employment, any
obligations hereunder which by their terms continue shall survive such
termination. This Agreement does not constitute a contract of employment.
Any termination of your employment by the Company or by you during the
Term shall be communicated by a written notice of termination (“Notice of
Termination”) to the other party hereto in accordance with Section 7. The
“Date of Termination” shall mean the effective date of such termination as
specified in the Notice of Termination; provided, however, that no such
Notice of Termination shall specify an effective date more than one
hundred eighty (180) days after the date of such Notice of Termination nor
less than thirty (30) days.
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2.
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Change
in Control. For purposes of this Agreement, a “Change in Control”
shall occur or be deemed to have occurred only if any of the following
events occur:
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(a)
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any
“person”, as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), (other
than the Company, any group of persons which includes you, any employee
benefit plan of the Company, any entity owned directly or indirectly by
the stockholders of the Company in substantially the same proportion as
their ownership of stock of the Company, or any other person owning thirty
(30) percent or more of the combined voting power of the company as of the
date hereof) is or becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing in the aggregate thirty percent (30%) or more of
the combined voting power of the Company's then outstanding voting
securities or more than fifty percent (50%) of the total fair market value
of the Company; or
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(b)
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a
majority of the members of the Board (as of the date hereof, the
“Incumbent Board”) is replaced during any 12 month period (except as a
result of a transaction with any group of persons which includes you),
provided that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company's stockholders,
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 Company, as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or
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(c)
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the
stockholders of the Company approve a merger or consolidation of the
Company with any other entity, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than thirty percent (30%) of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (ii) a merger or
consolidation effected solely to implement a recapitalization of the
Company (or similar transaction) in which no “person” (as hereinabove
defined) increases the percentage held of the combined voting power of the
Company's then outstanding securities, or (iii) a merger or consolidation
with any affiliate of yours; or
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(d)
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the
consummation of transactions contemplated by a resolution of the Board
whereby any person or persons (except a related person as provided in
Section 1.409A-3(i)(5)(vii)(B) of the Treasury Regulations issued under
Section 409A) acquire all or substantially all of the assets of the
Company, whether in a single transaction or series of transactions during
the 12 month period ending on the date of the most recent acquisition by
such person or persons; or
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(e)
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the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale, lease, exchange or disposition by
the Company of all or substantially all of the Company's
assets.
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3.
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Compensation
and Benefits Upon a Change in
Control.
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(a)
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Upon
a Change in Control (a “Trigger Event”) and notwithstanding any change in
your employment with the Company, but subject to the provisions of Section
5, the Company will pay to you within thirty (30) days of the Trigger
Event a lump sum amount equal to the aggregate
of:
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(i)
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three
times your annual base salary at the rate in effect immediately prior to
the Trigger Event (or such higher rate as may have been in effect within
the ninety (90) days prior to any Notice of Termination);
and
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(ii)
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three
times the annualized amount equal to the average annual cash bonus paid to
(or accrued for) you by the Company during the three (3) full years
preceding such Trigger Event.
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(b)
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Immediately
prior to a Change of Control, all of your then outstanding options to
purchase common stock of the Company shall be accelerated so that they
shall become immediately exercisable in full; provided, in the event of a
Change of Control as a result of a tender offer, such options shall become
fully exercisable in a timely manner such that you may participate in such
tender offer at any stage.
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(c)
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(i)
For the period terminating thirty-six (36) months after the Trigger Event
(the “Benefit Termination Date”), the Company shall maintain in full force
and effect, for the continued benefit of you, your spouse and your
dependents, all insured and self-insured employee medical, dental, and
prescription drug plans in which you were eligible to participate
immediately before the Trigger Event, provided that your continued
participation is possible under such plans and you continue to pay the
contribution amounts that the Company customarily charges employee
participants in such plans for such coverage. If and to the
extent that your continued participation is NOT possible under one or more
of such plans, you, your spouse and/or dependents may elect COBRA health
care continuation coverage under that plan or those plans, provided that
the Company shall pay the COBRA premium costs for such coverage, and if
such COBRA coverage is not available or can only be provided for a period
that terminates before the Benefit Termination Date, in each case for
reasons other than discretionary acts by you, your spouse and/or
dependents, then the Company shall pay you in a lump sum cash payment on
the first day of each month during the period that begins on the date that
such coverage is not available or cannot be provided and ends on the
Benefit Termination Date, equal to the COBRA premium (or the full monthly
premium cost, if no COBRA premium is prescribed) for
coverage.
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(ii) If
your employment with the Company is terminated before the Benefit Termination
Date for any reason, the Company will pay to you within thirty (30) days of your
termination of employment a lump sum cash payment equal to the dollar amount
defined in paragraph (A) reduced by the dollar amount defined in paragraph (B)
below.
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(A)
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The
lump sum cash present value, determined as of the Benefit Termination Date
using reasonable actuarial assumptions, of the accrued benefit payable to
you at your normal retirement date in the form of a single life annuity
under the Company’s pension plan as in effect on the Trigger Date,
assuming that you are continuously employed by the Company through the
Benefit Termination Date and receive compensation through that date at
your rate of earnings in effect on the date of the Trigger
Event.
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(B)
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The
lump sum cash present value, determined as of the date that your
employment with the Company terminated using reasonable actuarial
assumptions, of the accrued benefit payable to you at your normal
retirement date in the form of a single life annuity under the Company’s
pension plan.
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(d)
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The
Company shall maintain with a reputable carrier directors and officers
liability coverage for your benefit with coverage amounts at least equal
to those in place prior to the Trigger Event and on terms at least as
favorable as the terms of such coverage prior to the Trigger
Event.
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(e)
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The
Company hereby covenants and agrees that in the event of a Change of
Control the Company and its successors and assigns will continue in effect
any Plan (as hereinafter defined, excluding any equity compensation plan)
in which you are participating at the time of the Change in Control of the
Company (or Plans providing you with at least substantially similar
benefits in the aggregate), and that it will not take any action, or fail
to take any action, which would adversely affect your continued
participation in any of such Plans on at least as favorable a basis to you
as is the case on the date of the Change in Control or which would
materially reduce your benefits in the future under any of such Plans or
deprive you of any material benefit of such Plans enjoyed by you at the
time of the Change in Control.
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4.
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Taxes.
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(a)
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All
payments to be made to you under this Agreement will be subject to
required withholding of federal, state and local income and employment
taxes.
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(i)
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Subject
to the other provisions of this Section 4, in the event it shall be
determined that any payment or distribution by the Company to you or for
your benefit (whether paid or payable, distributed or distributable,
including, without limitation, the acceleration of vesting of any equity
compensation or other benefit or award, but determined without regard to
any additional payments required under this subparagraph (i)) (each, a
“Payment”) would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the “Code”), or any
interest or penalties are incurred by you with respect to such excise tax
(such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), then you shall
be entitled to receive an additional payment (a “Gross-Up Payment”) in an
amount sufficient to pay the Excise Tax on the Payments plus any federal,
state, or local income taxes, employment taxes, and any Excise Tax imposed
upon the Gross-Up Payment.
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(ii)
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Subject
to the other provisions of this Section 4, all determinations required to
be made under this Section 4, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the
assumptions to be used in arriving at such determination, shall be made by
a certified public accounting firm selected by the Company and reasonably
acceptable to you (the “Accounting Firm”), which shall be retained to
provide detailed supporting calculations both to the Company and you
within 15 business days of the receipt of notice from you that there has
been a Payment, or such earlier time as the Company
requests. If the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change in
Control, the Company shall have the right to 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 paid solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 4, shall be paid by the Company to you
within five (5) days of the receipt of the Accounting Firm’s
determination, but in no event later than December 31st of the year
following the year in which the Excise Tax is remitted to the taxing
authority. Any determination by the Accounting Firm shall be
binding upon the Company and you. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which should have been made will not have been made
by the Company (“Underpayment”), consistent with the calculations required
to be made hereunder. If the Company exhausts its remedies
pursuant to subparagraph (i) of this Section 4 and you thereafter are
required to pay an Excise Tax in an amount that exceeds the Gross-Up
Payment received by you, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for your
benefit.
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(iii)
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You
shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would result in an
Underpayment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after you are
informed in writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be
paid or appealed. You shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such
notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the
Company notifies you in writing prior to the expiration of such period
that it desires to contest such claim, you
shall:
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(A)
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give
the Company any information reasonably requested by the Company relating
to such claim;
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(B)
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take
such action in connection with contesting such claims as the Company 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
Company;
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(C)
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cooperate
with the Company in good faith in order to effectively contest such claim;
and
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(D)
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permit
the Company to participate in any proceedings relating to such
claim;
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provided,
however, that the Company 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 you 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
subparagraph (iii), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego 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 you to pay the tax claimed and xxx for a refund or to contest the claim
in any permissible manner, and you agree 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 Company shall
determine; provided, however, that if the Company directs you to pay such claim
and xxx for a refund, the Company shall advance the amount of such payment to
you, and shall indemnify and hold you 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 your taxable year with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company’s control of the contest
shall be limited to issues with respect to the amount of the Gross-Up Payment,
and you 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.
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(iv)
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If,
after the receipt by you of an amount advanced by the Company pursuant to
this Section 4, you become entitled to receive any refund with respect to
such claim, you shall promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto).
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(v)
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Notwithstanding
any other provision of this Section 4, the Company may, in its sole
discretion, withhold and pay over to the Internal Revenue Service or any
other applicable taxing authority, for your benefit, all or any portion of
the Gross-Up Payment, and the Executive hereby consents to such
withholding.
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5.
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Code
Section 409A Legal Requirements. This Agreement and the
benefits provided hereunder are intended to be exempt from or to comply
with the requirements of Section 409A of the Code and the Treasury
Regulations and other applicable guidance issued by the Treasury
Department or Internal Revenue Service thereunder (collectively, “Section
409A”), and shall be interpreted and administered consistent with such
intent. To the extent required for compliance with the
requirements of Section 409A, references in this Agreement to a
termination of employment and similar or correlative terms shall mean a
“separation of service” within the meaning of Section 409A. from the
Company and all other corporations and trades or businesses, if any, that
would be treated as a single "service recipient" with the Company under
Section 409A.
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Notwithstanding
anything to the contrary in this Agreement, if you are a “specified employee” as
defined and applied in Section 409A of the Code as of the Date of Termination,
to the extent any payment under this Agreement constitutes deferred compensation
(after taking into account any applicable exemptions from Section 409A of the
Code) which is payable on account of your separation from service, and to the
extent required by Section 409A of the Code, no payments due under this
Agreement may be made until the earlier of: (i) the first day following the
sixth-month anniversary of your Date of Termination, or (ii) your date of death;
provided, however, that any payments delayed during this six-month period shall
be paid in the aggregate in a lump sum as soon as administratively practicable
following the sixth month anniversary of your Date of Termination. If
you die on or after the Date of Termination and prior to the sixth month
anniversary of your Date of Termination, any amount delayed pursuant to this
Section 5 shall be paid to your estate or beneficiary, as applicable, within 30
days following the date of your death. For purposes of Section
409A of the Code, each “payment” (as defined by Section 409A of the Code) made
under this Agreement shall be considered a “separate payment.”
If either
party to this Agreement determines that this Agreement violates Section 409A of
the Code and that an amendment of this Agreement would avoid the imposition on
any person of additional taxes, penalties or interest under Section 409A of the
Code (a “Compliance Amendment”), then that party shall propose the terms of the
Compliance Amendment to the other party. The parties shall then in
good faith negotiate the terms of any such proposed Compliance
Amendment. If an agreement concerning the proposed Compliance
Amendment cannot be reached by the parties after the Company determines that a
reasonable period of time to consider the terms of the proposal has passed, then
the Company shall have the unilateral right to amend this Agreement to the
extent the Company deems such action necessary or advisable to avoid the
imposition on any person of additional taxes, penalties or interest under
Section 409A of the Code. Any such Compliance Amendment shall be made
in a manner which, to the maximum extent the Company agrees or reasonably and in
good faith determines to be possible, retains the economic and tax benefits to
you hereunder while not increasing the cost to the Company of providing such
benefits to you.
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6.
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Successors
and Assigns; Binding
Agreement.
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(a)
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The
Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business or assets of the Company expressly to assume and agree to
perform this Agreement to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of
the Company to obtain an assumption of this Agreement prior to the
effectiveness of any succession shall be a breach of this Agreement and
shall entitle you to compensation from the Company in the same amount and
on the same terms as you would be entitled hereunder if you had been
terminated without Cause. As used in this Agreement, “Company” shall mean
the Company as defined above and any successor to its business or assets
as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
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(b)
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This
Agreement, and the your rights and obligations hereunder, may not be
assigned by you, nor may you pledge, encumber or anticipate any payments
or benefits due hereunder, by operation of law or
otherwise.
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The
Company may assign its rights, together with its obligations, hereunder: (i) to
any affiliate; or (ii) to a third party in connection with any sale, transfer or
other disposition of all or substantially all of any business to which your
services are then principally devoted; provided, however, that no
assignment pursuant to this paragraph shall relieve the Company from its
obligations hereunder to the extent the same are not timely discharged by such
assignee.
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(c)
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This
Agreement shall inure to the benefit of and be enforceable by your
personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any
amount would still be payable to you hereunder if you had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to your devisee, legatee or
other designee or if there is no such designee, to your
estate.
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7.
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Notice.
For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be duly given
when delivered or when mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to the
President of the Company, at the Company's main office, and to you at the
address shown above or to such other address as either the Company or you
may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon
receipt.
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8.
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Miscellaneous.
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(a)
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The
invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and
effect.
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(b)
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The
validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of The Commonwealth of
Massachusetts.
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(c)
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This
Agreement may be amended, modified, superseded, canceled, renewed or
extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case
of a waiver, by the party waiving compliance. The failure of either party
at any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in this
Agreement.
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(d)
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This
Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and
the same instrument.
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(e)
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Any
payments provided for hereunder shall be paid net of any applicable
withholding required under federal, state or local
law.
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(f)
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This
Agreement replaces and terminates any prior agreement or understanding
between you and the Company with respect to the subject matter
hereof.
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If this
letter sets forth our agreement on the subject matter hereof, kindly sign and
return to the Company the enclosed copy of this letter, which will then
constitute our agreement on this subject.
Sincerely,
THE X.X.
XXXXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Treasurer
and Chief Financial Officer
Agreed to
this 16th day of January, 2009
/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
Address:
000
Xxxxxx Xxxxxx
Xxxxx, XX
00000
