Exhibit 10.11
CONTINUITY AGREEMENT
This Agreement (the "Agreement") is dated as of January 11, 2000 by and
between Xxxx-XxXxx Corporation, a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company's Board of Directors considers the continued
services of key executives of the Company to be in the best interests of the
Company and its stockholders; and
WHEREAS, the Company's Board of Directors desires to assure, and has
determined that it is appropriate and in the best interests of the Company and
its stockholders to reinforce and encourage the continued attention and
dedication of key executives of the Company to their duties of employment
without personal distraction or conflict of interest in circumstances which
could arise from the occurrence of a change in control of the Company; and
WHEREAS, the Company's Board of Directors has authorized the Company to
enter into continuity agreements with those key executives of the Company and
any of its respective subsidiaries (all of such entities, together with the
Company, are hereinafter referred to as an "Employer"), such agreements to set
forth the severance compensation which the Company agrees under certain
circumstances to pay such executives; and
WHEREAS, the Executive is a key executive of an Employer and has been
designated as an executive to be offered such a continuity compensation
agreement with the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Executive agree as follows:
1. Term. This Agreement shall become effective on the date hereof (the
"Effective Date") and remain in effect until the third anniversary thereof;
provided, however, that this Agreement shall automatically renew for an
additional year on each successive anniversary of the Effective Date, unless an
Employer informs the Executive, in writing, at least 180 days prior to the
renewal date, that this Agreement shall not be renewed. The foregoing shall
constitute the "Term" of this Agreement for purposes hereof.
2. Change in Control. No compensation or other benefit pursuant to
Section 4 hereof shall be payable under this Agreement unless and until either
(i) a Change in Control of the Company (as hereinafter defined) shall have
occurred while the Executive is employed by an Employer and the Executive's
employment by an Employer thereafter shall have terminated in accordance with
Section 3 hereof or (ii) the Executive's employment by an Employer shall have
terminated in accordance with Section 3(a)(ii) hereof prior to the occurrence of
the Change in Control. For purposes of this Agreement, a "Change in Control"
shall be deemed to have occurred when, during the Term of this Agreement:
(a) any person ("Person") as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and as used in
Section 13(d) and 14(d) thereof, including a "group" as defined in Section 13(d)
of the Exchange Act but excluding the Company and any subsidiary and any
employee benefit plan sponsored or maintained by the Company or any subsidiary
(including any trustee of such plan acting as trustee), directly or indirectly,
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), of securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding securities (other than indirectly
as a result of the Company's redemption of its securities); or
(b) the consummation of any merger or other business
combination of the Company, sale of 50% or more of the Company's assets,
liquidation or dissolution of the Company or combination of the foregoing
transactions (the "Transactions") other than a Transaction immediately following
which the shareholders of the Company and any trustee or fiduciary of any
Company employee benefit plan immediately prior to the Transaction own at least
60% of the voting power, directly or indirectly, of (A) the surviving
corporation in any such merger or other business combination; (B) the purchaser
of or successor to the Company's assets; (C) both the surviving corporation and
the purchaser in the event of any combination of Transactions; or (D) the parent
company owning 100% of such surviving corporation, purchaser or both the
surviving corporation and the purchaser, as the case may be; or
(c) within any twenty-four month period, the persons who were
directors immediately before the beginning of such period (the "Incumbent
Directors") shall cease (for any reason other than death) to constitute at least
a majority of the Board or the board of directors of a successor to the Company.
For this purpose, any director who was not a director at the beginning of such
period shall be deemed to be an Incumbent Director if such director was elected
to the Board by, or on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent Directors (so long
as such director was not nominated by a person who commenced or threatened to
commence an election contest or proxy solicitation by or on behalf of a Person
(other than the Board) or who has entered into an agreement to effect a Change
in Control or expressed an intention to cause such a Change in Control); or
(d) a majority of the members of the Board of Directors in
office immediately prior to a proposed transaction determine by a written
resolution that such proposed transaction, if taken, will be deemed a Change in
Control and such proposed transaction is consummated.
3. Termination of Employment; Definitions.
(a) Termination without Cause by the Company or for Good
Reason by the Executive.
(i) The Executive shall be entitled to the
compensation provided for in Section 4 hereof, if within two years after a
Change in Control, the Executive's employment by an Employer shall be terminated
(A) by an Employer for any reason other than (I) the Executive's Disability or
Retirement, (II) the Executive's death or (III) for Cause, or (B) by the
Executive with Good Reason (all terms are as hereinafter defined), unless such
termination occurs with the Executive's prior written consent expressly waiving
the rights provided hereunder.
(ii) In addition, the Executive shall be entitled to
the compensation provided for in Section 4 hereof if, (A) in the event that an
agreement is signed which, if consummated, would result in a Change of
Control and, within 12 months thereafter, the Executive is terminated without
Cause by the Company (other than on account of Executive's Death or Disability)
or terminates employment with Good Reason prior to the Change in Control,
(B) such termination is at the request or instigation of the acquiror or
merger partner or otherwise in connection with the anticipated Change in
Control, and (C) within said 12 month period, such Change in Control actually
occurs.
(b) Disability. For purposes of this Agreement, "Disability"
shall mean the Executive's absence from the full-time performance of the
Executive's duties (as such duties existed immediately prior to such absence)
for 180 consecutive business days, when the Executive is disabled as a result of
incapacity due to physical or mental illness.
(c) Retirement. For purposes of this Agreement, "Retirement"
shall mean the Executive's voluntary termination of employment pursuant to late,
normal or early retirement under a pension plan sponsored by an Employer, as
defined in such plan, but only if such retirement occurs prior to a termination
by an Employer without Cause or by the Executive for Good Reason.
(d) Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of the
Executive to perform substantially all of his or her duties with an Employer
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to
such Executive by the Board of Directors (the "Board") of the Company which
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed his or her duties;
(ii) the willful engaging by the Executive in
gross misconduct which is materially and demonstrably injurious to the Company
or any Employer; or
(iii) the conviction of, or plea of guilty or nolo
contendere to, a felony.
Termination of the Executive for Cause shall be made by
delivery to the Executive of a copy of a resolution duly adopted by the
affirmative vote of not less than a three-fourths majority of the non-employee
Directors of the Company or of the ultimate parent of the entity which caused
the Change in Control (if the Company has become a subsidiary) at a meeting of
such Directors called and held for such purpose, after 30 days prior written
notice to the Executive specifying the basis for such termination and the
particulars thereof and a reasonable opportunity for the Executive to cure or
otherwise resolve the behavior in question prior to such meeting, finding that
in the reasonable judgment of such Directors, the conduct or event set forth in
any of clauses (i) through (iii) above has occurred and that such occurrence
warrants the Executive's termination.
(e) Good Reason. For purposes of this Agreement, "Good Reason"
shall mean the occurrence, within the Term of this Agreement, of any of the
following without the Executive's written consent expressly waiving the rights
provided hereunder:
(i) any material and adverse diminution in the
Executive's duties or responsibilities with the Company (or any affiliate
thereof) from those in effect immediately prior to the Change in Control;
provided, however, that no such diminution shall be deemed to exist solely
because of changes in Executive's duties, responsibilities or titles as a
consequence of the Company ceasing to be a company with publicly-traded
securities or becoming a wholly-owned subsidiary of another company;
(ii) any reduction in the Executive's annual base
salary or any adverse change in bonus opportunity or participation in cash bonus
programs in effect immediately prior to the Change in Control;
(iii) any requirement that Executive be based at a
location more than 35 miles from the location at which the Executive was based
immediately prior to the Change in Control (or a substantial increase in the
amount of travel Executive is required to do because of a relocation of the
executive offices);
(iv) any failure by the Company to obtain from
any successor to the Company an agreement reasonably satisfactory to the
Executive to assume and perform this Agreement, as contemplated by Section 10(a)
hereof; or
(v) during the thirty-day period immediately
following the first anniversary of the Change in Control, the voluntary
termination of employment by the Executive for any reason or no reason at
all;
(vi) any amendment, reduction or termination of
any benefit plan, program or arrangement, which has the effect of causing the
Executive to have benefits which are not substantially similar, in the
aggregate, to those benefits provided to the Executive immediately prior to the
Change in Control.
Notwithstanding the foregoing, in the event Executive provides
the Company with a Notice of Termination (as defined below) referencing this
Section 3(e) (with the exception of Section 3(e)(v)), the Company shall have 30
days thereafter in which to cure or resolve the behavior otherwise constituting
Good Reason. Any good faith determination by Executive that Good Reason exists
shall be presumed correct and shall be binding upon the Company.
(f) Notice of Termination. Any purported termination of the
Executive's employment (other than on account of Executive's death) with an
Employer, if such termination occurs after the occurrence of a Change in Control
or under circumstances specified under Section 3(a)(ii) above, shall be
communicated by a Notice of Termination to the Executive, if such termination is
by an Employer, or to an Employer, if such termination is by the Executive. For
purposes of this Agreement, "Notice of Termination" shall mean a written notice
which shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provisions so indicated; provided, however, that in connection with a
termination for Good Reason under Section 3(e)(v), no details shall be necessary
other than reference to such Section. For purposes of this Agreement, no
purported termination of Executive's employment with an Employer shall be
effective without such a Notice of Termination having been given.
4. Compensation Upon Termination After a Change in Control.
Subject to Section 9 hereof, if within two years of a Change
in Control, the Executive's employment by an Employer shall be terminated in
accordance with Section 3(a) (the "Termination"), the Executive shall be
entitled to the following payments and benefits:
(a) Severance. The Company shall pay or cause to be paid to
the Executive a cash severance amount equal to (i) three (3) times the sum of
(A) the Executive's annual base salary on the date of the Change in Control (or,
if higher, the annual base salary in effect immediately prior to the giving of
the Notice of Termination) and (B) the higher of: (x) the average of the actual
bonuses earned by the Executive in respect of the three years prior to the year
in which the Change in Control occurs under the Company's incentive award
program, or (y) the Executive's target bonus for the year of Termination, plus
(ii) in lieu of continuation of any of the Executive's perquisites as provided
to the Executive prior to the Change in Control (or, if greater, at the time of
Termination), a cash payment equal to 7 percent of the Executive's annual base
salary as in effect on the date of the Change in Control for each of the three
(3) years following the date of Termination. This cash severance amount shall be
payable in a lump sum.
(b) Additional Payments and Benefits. The Executive
shall also be entitled to:
(i) a lump sum cash payment equal to the sum of
(A) the Executive's accrued but unpaid annual base salary through the date
of Termination, (B) the unpaid portion, if any, of bonuses previously earned
by the Executive pursuant to the Company's Executive incentive award program,
plus the pro rata portion of the bonus to be paid for the year in which the
date of Termination occurs (calculated through the date of Termination), and
(C) an amount, if any, equal to compensation previously deferred (excluding any
qualified plan deferral) and any accrued vacation pay, in each case, in full
satisfaction of Executive's rights thereto.
(ii) a lump sum cash payment equal to the
aggregate sum of (A) additional pension contributions in an amount equal to the
Company's contributions under the Company's 401(k) plan, profit sharing or
other savings pension plans (or such other qualified and nonqualified defined
contribution pension plans as then in effect) for the three (3) year period
following the date of Termination (the "Separation Period") (based on assumed
rates of Executive's contributions at the level of participation in effect as of
the last date Executive was permitted to participate); and (B) the difference
between the discounted present value (i.e., lump sum value) of the annuity
benefit the Executive is entitled to receive under the Company's qualified
and nonqualified defined benefit retirement programs in which the Executive
is a participant calculated through the date of Termination and the discounted
present value (i.e., lump sum value) of the annuity benefit the Executive would
be entitled to receive under such retirement programs calculated after adding
an additional five years of credit to age and service up to a maximum of age 65
as if the executive had been paid at the rate used to calculate the payments
under Section 4(a), provided that the additional credits added with respect to
each retirement program shall not exceed five years when added to any
additional credits already provided by the terms of the such programs in respect
of the Termination covered hereby.
(iii) continued medical, dental, vision, and life
insurance coverage (excluding accident, death, and disability insurance) for the
Executive and the Executive's eligible dependents or, to the extent such
coverage is not commercially available, such other arrangements reasonably
acceptable to the Executive, on the same basis as in effect prior to the Change
in Control or the Executive's Termination, whichever is deemed to provide for
more substantial benefits, for a period ending on the earlier of (A) the end of
the Separation Period or (B) the commencement of comparable coverage by the
Executive with a subsequent employer;
(iv) unless it would adversely affect the
Company's ability to use pooling of interest accounting in a Change in Control
transaction in which such accounting is intended to be used, immediate 100%
vesting of all outstanding stock options, stock appreciation rights and
restricted stock granted or issued by any Employer to the extent not previously
vested on or following the Change of Control; and
(v) all other accrued or vested benefits in
accordance with the terms of the applicable plan (with an offset for any amounts
paid under Section 4(b)(i)(C), above).
All lump sum payments under this Section 4 shall be paid
within 15 business days after Executive's date of Termination, provided,
however, that such payment shall be made 30 days after Termination in the event
that the Company requires the Executive to sign a release at the time of
Termination. Discounted present value (i.e., lump sum value) for purposes of
subsection (ii) above shall be calculated using a discount factor equal to one
percentage point below the rate of interest, per annum, publicly announced by
The Chase Manhattan Bank, N.A. as its prime rate in effect at its principal
office in New York City, and using the actuarial factors set forth in the
defined benefit retirement program.
(c) Outplacement. If so requested by the Executive,
outplacement services shall be provided by a professional outplacement provider
selected by Executive; provided, however, that such outplacement services shall
be provided the Executive at an aggregate total cost to the Company of not more
than ten (10) percent of such Executive's annual base salary.
(d) Withholding. Payments and benefits provided pursuant
to this Section 4 shall be subject to any applicable payroll and other taxes
required to be withheld.
5. Compensation Upon Termination for Death, Disability or
Retirement.
If an Executive's employment is terminated by reason of Death,
Disability or Retirement prior to any other termination, Executive will receive:
(a) the sum of (i) Executive's accrued but unpaid salary
through the date of Termination, (ii) the pro rata portion of the Executive's
target bonus for the year of Executive's Death or Disability (calculated through
the date of Termination), and (iii) an amount equal to any compensation
previously deferred and any accrued vacation pay; and
(b) other accrued or vested benefits in accordance with the
terms of the applicable plan (with an offset for any amounts paid under item
(a)(iii), above).
6. Excess Parachute Payments.
(a) (i) If it is determined (as hereafter provided)
that any payment or distribution by the Company or any Employer to or for the
benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise pursuant to
or by reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, stock appreciation right or
similar right, or the lapse or termination of any restriction on or the vesting
or exercisability of any of the foregoing (a "Severance Payment"), would be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provision thereto) by reason of being "contingent on a change in ownership or
control" of the Company, within the meaning of Section 280G of the Code (or any
successor provision thereto) or to any similar tax imposed by state or local
law, or any interest or penalties with respect to such excise tax (such tax
or taxes, together with any such interest and penalties, are hereafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment or payments (a "Gross-Up Payment")
in an amount such that, after payment by the Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), including any
Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Severance Payments.
(ii) Subject to the provisions of Section 6(a)(i)
hereof, all determinations required to be made under this Section 6, including
whether an Excise Tax is payable by the Executive and the amount of such
Excise Tax and whether a Gross-Up Payment is required and the amount of such
Gross-Up Payment, shall be made by the nationally recognized firm of certified
public accountants (the "Accounting Firm") used by the Company prior to the
Change in Control (or, if such Accounting Firm declines to serve, the
Accounting Firm shall be a nationally recognized firm of certified public
accountants selected by the Executive). The Accounting Firm shall be
directed by the Company or the Executive to submit its preliminary
determination and detailed supporting calculations to both the Company and the
Executive within 15 calendar days after the Termination Date, if applicable, and
any other such time or times as may be requested by the Company or the
Executive. If the Accounting Firm determines that any Excise Tax is payable
by the Executive, the Company shall pay the required Gross-Up Payment to,
or for the benefit of, the Executive within five business days after receipt of
such determination and calculations. If the Accounting Firm determines that
no Excise Tax is payable by the Executive, it shall, at the same time as it
makes such determination, furnish the Executive with an opinion that he has
substantial authority not to report any Excise Tax on his/her federal, state,
local income or other tax return. Any determination by the Accounting Firm as to
the amount of the Gross-Up Payment shall be binding upon the Company and the
Executive absent a contrary determination by the Internal Revenue Services
or a court of competent jurisdiction; provided, however, that no such
determination shall eliminate or reduce the Company's obligation to provide any
Gross-Up Payment that shall be due as a result of such contrary determination.
As a result of the uncertainty in the application of Section 4999 of the Code
(or any successor provision thereto) and the possibility of similar
uncertainty regarding state or local tax law at the time of any determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments that
will not have been made by the Company should have been made (an
"Underpayment"), consistent with the calculations required to be made hereunder.
In the event that the Company exhausts or fails to pursue its remedies
pursuant to Section 6(a) hereof and the Executive thereafter is required
to make a payment of any Excise Tax, the Executive shall direct the Accounting
Firm to determine the amount of the Underpayment that has occurred and to submit
its determination and detailed supporting calculations to both the Company and
the Executive as promptly as possible. Any such Underpayment shall be promptly
paid by the Company to, or for the benefit of, the Executive within five
business days after receipt of such determination and calculations.
(iii) The federal, state and local income or other
tax returns filed by theExecutive (or any filing made by a consolidated tax
group which includes the Company) shall be prepared and filed on a consistent
basis with the determination of the Accounting Firm with respect to the Excise
Tax payable by the Executive. The Executive shall make proper payment of the
amount of any Excise Tax, and at the request of the Company, provide to the
Company true and correct copies (with any amendments) of his/her federal income
tax return as filed with the Internal Revenue Service and corresponding state
and local tax returns, if relevant, as filed with the applicable taxing
authority, and such other documents reasonably requested by the Company,
evidencing such payment. If prior to the filing of the Executive's federal
income tax return, or corresponding state or local tax return, if relevant,
the Accounting Firm determines that the amount of the Gross-Up Payment should
be reduced, the Executive shall within five business days pay to the Company
the amount of such reduction.
(iv) The Company and the Executive shall each
provide the Accounting Firm access to and copies of any books, records and
documents in the possession of the Company or the Executive, as the case may be,
reasonably requested by the Accounting Firm, and otherwise cooperate with the
Accounting Firm in connection with the preparation and issuance of the
determination contemplated by Section 6(a) hereof.
(v) The fees and expenses of the Accounting Firm
for its services in connection with the determinations and calculations
contemplated by Sections 6(a)(ii) and (iv) hereof shall be borne by the Company.
If such fees and expenses are initially advanced by the Executive, the Company
shall reimburse the Executive the full amount of such fees and expenses within
five business days after receipt from the Executive of a statement therefor
and reasonable evidence of his/her payment thereof.
(b) In the event that the Internal Revenue Service claims that
any payment or benefit received under this Agreement constitutes an "excess
parachute payment," within the meaning of Section 280G(b)(1) of the Code, the
Executive shall notify the Company in writing of such claim. Such notification
shall be given as soon as practicable but no later than 10 business days after
the Executive is 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. The Executive shall not pay such claim prior to the expiration of the 30
day period following the date on which the Executive 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 the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall (i) give the Company any information reasonably
requested by the Company relating to such claim; (ii) take such action in
connection with contesting such claim 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 and reasonably satisfactory to the Executive; (iii) cooperate with
the Company in good faith in order to effectively contest such claim; and (iv)
permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including, but not limited to, additional interest and penalties and
related legal, consulting or other similar fees) incurred in connection with
such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for and against any Excise Tax or other tax (including interest
and penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses.
(c) The Company 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 the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the 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 Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis, and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or other tax
(including interest and penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and provided, further, that if the Executive is required to extend the statute
of limitations to enable the Company to contest such claim, the Executive may
limit this extension solely to such contested amount. The Company's control of
the contest shall be limited to issues with respect to which a corporate
deduction would be disallowed pursuant to Section 280G of the Code and the
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. In
addition, no position may be taken nor any final resolution be agreed to by the
Company without the Executive's consent if such position or resolution could
reasonably be expected to adversely affect the Executive (including any other
tax position of the Executive unrelated to matters covered hereby).
(d) If, after the receipt by the Executive of an amount
advanced by the Company in connection with the contest of the Excise Tax claim,
the Executive becomes entitled to receive any refund with respect to such claim,
the Executive shall promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto); provided, however, if the amount of that refund exceeds the amount
advanced by the Company or it is otherwise determined for any reason that
additional amounts could be paid to the Named Executive without incurring any
Excise Tax, any such amount will be promptly paid by the Company to the named
Executive (or shall be applied to reduce any amount that Executive would
otherwise be required to pay the Company). If, after the receipt by the
Executive of an amount advanced by the Company in connection with an Excise Tax
claim, a determination is made that the Executive shall not be entitled to any
refund with respect to such claim and the Company does not notify the Executive
in writing of its intent to contest the denial of such refund prior to the
expiration of 30 days after such determination, such advance shall be forgiven
and shall not be required to be repaid and shall be deemed to be in
consideration for services rendered after the date of the Termination.
7. Expenses. In addition to all other amounts payable to the Executive
under this Agreement, the Company shall pay or reimburse the Executive for
reasonable legal fees (including without limitation, any and all court costs and
reasonable attorneys' fees and expenses) incurred by the Executive in connection
with or as a result of any claim, action or proceeding brought by the Company or
the Executive with respect to or arising out of this Agreement or any provision
hereof; provided, however, that the Company shall have no obligation to pay any
such legal fees, if (i) in the case of an action brought by the Executive, the
Company is successful in establishing with the court that the Executive's action
was frivolous or otherwise without any reasonable legal or factual basis; or
(ii) in connection with any such claim, action or proceeding arising out of
Section 12 of this Agreement.
8. Obligations Absolute; Non-Exclusivity of Rights; Joint Several
Liability.
(a) The obligations of the Company to make the payments to the
Executive, and to make the arrangements, provided for herein shall be absolute
and unconditional and shall not be reduced by any circumstances, including
without limitation any set-off, counterclaim, recoupment, defense or other right
which the Company may have against the Executive or any third party at any time.
(b) Nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit, bonus, incentive
or other plan or program provided by the Company or any other Employer and for
which the Executive may qualify, nor shall anything herein limit or reduce such
rights as the Executive may have under any agreements with the Company or any
other Employer.
(c) Each entity included in the definition of "Employer" and
any successors or assigns shall be joint and severally liable with the Company
under this Agreement.
9. Not an Employment Agreement; Effect On Other Rights.
(a) This Agreement is not, and nothing herein shall be deemed
to create, a contract of employment between the Executive and the Company. The
Company may terminate the employment of the Executive by the Company at any
time, subject to the terms of this Agreement and/or any employment agreement or
arrangement between the Company and the Executive that may then be in effect.
(b) This Agreement supersedes all prior agreements covering
change in control or any other subject matter covered by this Agreement and
Executive hereby represents that the Executive has no other oral or written
representations, understandings or agreements with the Company or any of its
officers, directors or representatives covering any such subject matter and
agrees that any and all prior written agreements relating to such subject matter
shall be terminated effective as of the date of execution of this Agreement and
shall be of no further force or effect. Notwithstanding the foregoing, and
except as provided in the last sentence of this paragraph, this Agreement shall
not have any effect on the Executive's rights under that certain Agreement by
and between the Executive and the Company dated as of January 6, 2000 (the
"Other Agreement"); provided, however, that in the event of the Executive's
termination of employment under circumstances that invoke Section 3 hereof, this
Agreement shall govern solely for the purpose of providing the terms of all
payments and additional benefits to which the Executive is entitled upon such
termination if such payments and benefits are greater in the aggregate than
those provided by the Other Agreement and any payments or benefits provided
pursuant to the Other Agreement shall reduce the corresponding type of payments
or benefits hereunder. The Other Agreement shall terminate and be of no further
force or effect as of February 27, 2002.
Notwithstanding the foregoing, and except as provided in the
event that the Executive's employment is terminated prior to the occurrence of a
Change in Control under the circumstances provided for in Section 3(a)(ii) and
such circumstances also entitle Executive to payments and benefits under the
Other Agreement, then, until the Change in Control occurs, the Executive will
receive the payments and benefits to which he/she is entitled under such Other
Agreement. Upon the occurrence of the Change in Control, the Company will pay to
the Executive in cash the amount to which he/she is entitled to under this
Agreement (reduced by the amounts already paid under the Other Agreement) in
respect of cash payments and shall provide or increase any other noncash
benefits to those provided for hereunder (after taking into Account noncash
benefits, if any, provided under such Other Agreement). Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any
Company plan or program of the Company or any other Employer shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
10. Successors; Binding Agreement, Assignment.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business of the Company, by agreement to expressly,
absolutely and unconditionally assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a material
breach of this Agreement and shall entitle the Executive to terminate the
Executive's employment with the Company or such successor for Good Reason
immediately prior to or at any time after such succession. As used in this
Agreement, "Company" shall mean (i) the Company as hereinbefore defined, and
(ii) any successor to all the stock of the Company or to all or substantially
all of the Company's business or assets which executes and delivers an agreement
provided for in this Section 10(a) or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law, including any parent
or subsidiary of such a successor.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would be payable to the Executive
hereunder if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's estate or designated beneficiary. Neither this
Agreement nor any right arising hereunder may be assigned or pledged by the
Executive.
11. Notice. For purpose of this Agreement, notices and all other
communications provided for in this Agreement or contemplated hereby shall be in
writing and shall be deemed to have been duly given when personally delivered,
delivered by a nationally recognized overnight delivery service or when mailed
United States certified or registered mail, return receipt requested, postage
prepaid, and addressed, in the case of the Company, to the Company at:
Xxxx-XxXxx Corporation
000 Xxxxxx X. Xxxx Xxxxxx
P.O. Box 25861
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
(with a copy to General Counsel)
and in the case of the Executive, to the Executive at the address set forth on
the execution page at the end hereof.
Either party may designate a different address by giving notice of
change of address in the manner provided above, except that notices of change of
address shall be effective only upon receipt.
12. Confidentiality.
(a) The Executive shall retain in confidence any and all
confidential information concerning the Company and its respective business
which is now known or hereafter becomes known to the Executive, except as
otherwise required by law and except information (i) ascertainable or obtained
from public information, (ii) received by the Executive at any time after the
Executive's employment by the Company shall have terminated, from a third party
not employed by or otherwise affiliated with the Company or (iii) which is or
becomes known to the public by any means other than a breach of this Section 12.
Upon the Termination of employment, the Executive will not take or keep any
proprietary or confidential information or documentation belonging to the
Company.
(b) The Executive acknowledges and agrees that the Company's
remedies at law for a breach or threatened breach of any of the provisions of
this Section 12 would be inadequate and, in recognition of this fact, Executive
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, the Company, without posting any bond, shall be entitled to
cease making any payments or providing any benefit otherwise required by this
Agreement during the pendency of any dispute involving such Section and to
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available. Upon the resolution of such dispute, any
payments or benefits required by this Agreement which were suspended during the
pendency of the dispute shall be paid or provided to the Executive if it is
determined that no breach of this Section 12 occurred.
This paragraph 12 shall survive the termination of this Agreement.
13. Release. In the event that the Company requests a release from
the Executive, in the form attached hereto as Exhibit A, then as a condition to
providing any payments or benefits under this Agreement, the Executive shall
deliver such release.
14. Miscellaneous. No provision of this Agreement may be amended,
altered, modified, waived or discharged unless such amendment, alteration,
modification, waiver or discharge is agreed to in writing signed by the
Executive and such officer of the Company as shall be specifically designated by
the Committee or by the Board of Directors of the Company. No waiver by either
party, at any time, of any breach by the other party of, or of compliance by the
other party with, any condition or provision of this Agreement to be performed
or complied with by such other party shall be deemed a waiver of any similar or
dissimilar provision or condition of this Agreement or any other breach of or
failure to comply with the same condition or provision at the same time or at
any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
15. Severability. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
hereto waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
16. Governing Law; Venue. The validity, interpretation, construction
and performance of this Agreement shall be governed exclusively by the laws of
the State of Delaware without giving effect to its conflict of laws rules. For
purposes of jurisdiction and venue, the Company and each Employer hereby
consents to jurisdiction and venue in any suit, action or proceeding with
respect to this Agreement in any court of competent jurisdiction in the state in
which Executive resides at the commencement of such suit, action or proceeding
and waives any objection, challenge or dispute as to such jurisdiction or venue
being proper.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XXXX-XXXXX CORPORATION
By:
Xxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Exhibit A
RELEASE
[_________] ("Executive"), for and in consideration of the payments and
benefits that Executive shall receive under this Agreement, hereby executes the
following General Release ("Release") and agrees as follows:
1. Executive, on behalf of Executive, Executive's agents, assignees,
attorneys, successors, assigns, heirs and executors, to, and Executive does
hereby fully and completely forever release the Company and its affiliates,
predecessors and successors and all of their respective past and/or present
officers, directors, partners, members, managing members, managers, Executives,
agents, representatives, administrators, attorneys, insurers and fiduciaries in
their individual and/or representative capacities (hereinafter collectively
referred to as the "Releasees"), from any and all causes of action, suits,
agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, claims, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, variances,
trespasses, extents, executions and demands of any kind whatsoever, which
Executive or Executive's heirs, executors, administrators, successors and
assigns ever had, now have or may have against the Releasees or any of them, in
law, admiralty or equity, whether known or unknown to Executive, for, upon, or
by reason of, any matter, action, omission, course or thing whatsoever occurring
up to the date this Release is signed by Executive, including, without
limitation, in connection with or in relationship to Executive's employment or
other service relationship with the Company or its affiliates, the termination
of any such employment or service relationship and any applicable employment,
compensatory or equity arrangement with the Company or its respective
affiliates; provided that such released claims shall not include any claims to
enforce Executive's rights under, or with respect to, this Release (such
released claims are collectively referred to herein as the "Released Claims").
2. Notwithstanding the generality of clause (1) above, the Released
Claims include, without limitation, (a) any and all claims under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
the Civil Rights Act of 1971, the Civil Rights Act of 1991, the Fair Labor
Standards Act, the Executive Retirement Income Security Act of 1974, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, and
any and all other federal, state or local laws, statutes, rules and regulations
pertaining to employment or otherwise, and (b) any claims for wrongful
discharge, breach of contract, fraud, misrepresentation or any compensation
claims, or any other claims under any statute, rule, regulation or under the
common law, including compensatory damages, punitive damages, attorney's fees,
costs, expenses and all claims for any other type of damage or relief.
3. This means that, by signing this Release, the Executive shall have
waived any right to which the Executive may have had to bring a lawsuit or make
any claim against the releasees based on any acts or omissions of the releasees
up to the date of the signing of this Release.
4. Executive represents that he has read carefully and fully
understands the terms of this Release, and that Executive has been advised to
consult with an attorney and have had the opportunity to consult with an
attorney prior to signing this Release. Executive acknowledges that he is
executing this Release voluntarily and knowingly and that he has not relied on
any representations, promises or agreements of any kind made to Executive in
connection with Executive's decision to accept the terms of this Release, other
than those set forth in this Release. Executive acknowledges that Executive has
been given at least twenty-one (21) days to consider whether Executive wants to
sign this Release and that the Age Discrimination in Employment Act gives
Executive the right to revoke this Release within seven (7) days after it is
signed, and Executive understands that he will not receive any payments due him
under this Release until such seven (7) day revocation period (the "Revocation
Period") has passed and then, only if Executive has not revoked this Release. To
the extent Executive has executed this Release within less than twenty-one (21)
days after its delivery to Executive, Executive hereby acknowledges that his
decision to execute this Release prior to the expiration of such twenty-one (21)
day period was entirely voluntary.
XXXX-XXXXX CORPORATION
------------------------- ------------------------------
Executive Title:
Name:
