EXHIBIT 10.17
CHANGE IN CONTROL AGREEMENT
CHANGE IN CONTROL AGREEMENT dated as of the 10th day of June, 1997,
(this "Agreement") between Xxxxxx-Xxxxxx, Inc., a Delaware corporation (the
"Company"), and Xxxxx XxXxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive is a senior executive or a key employee of the
Company or one or more of its subsidiaries and has made and is expected to
continue to make major contributions to the short- and long-term profitability,
growth and financial strength of the Company;
WHEREAS, the Company recognizes that, as is the case for most
publicly-held companies, the possibility of a Change in Control (as defined
below) exists;
WHEREAS, the Company desires to assure itself of both present and
future continuity of management and desires to establish certain minimum
severance benefits for certain of its senior executives and key employees,
including the Executive, applicable in the event of a Change in Control;
WHEREAS, the Company wishes to ensure that its senior executives and
key employees are not practically disabled from discharging their duties in
respect of a proposed or actual transaction involving a Change in Control;
WHEREAS, the Board of Directors of the Company (the "Board") 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 members of the Company's management, including the Executive, to
their assigned duties;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained and in further consideration of services performed
and to be performed by the Executive for the Company, the Company and the
Executive do hereby agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) CAUSE. Termination for "Cause" shall mean:
(i) the willful and continued failure by the Executive to
substantially perform his duties hereunder (other than any such
failure resulting from the Executive's incapacity due to physical or
mental illness or any such actual or anticipated failure after
the issuance of a Notice of Termination by the Executive for Good
Reason), after demand for substantial performance is delivered by
the Company that specifically identifies the manner in which the
Company believes the Executive has not substantially performed his
duties, or
(ii) the willful engaging by the Executive in misconduct which is
materially injurious to the Company, monetarily or otherwise.
No act, or failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the best
interest of the Company. Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for Cause without (x)
reasonable notice to the Executive setting forth the reasons for the
Company's intention to terminate for Cause, (y) an opportunity for the
Executive, together with his counsel, to be heard before the Board, and
(z) delivery to the Executive of a Notice of Termination from the Board
finding that in the good faith opinion of the Board the Executive was
guilty of conduct set forth above in clause (i) or (ii) hereof, and
specifying the particulars thereof in detail.
(b) CHANGE IN CONTROL. A "Change in Control" of the Company shall
occur upon:
(i) any person (as defined in Sections 3(a)(9) and 13(d)(3) of
the '34 Act) ("Person") (other than an Excluded Person (as hereinafter
defined), the Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any subsidiary of the
Company) becoming the "beneficial owner" (as defined in Rule 13d-3
promulgated pursuant to the '34 Act), directly or indirectly, of 25%
or more of combined voting power of the then outstanding securities
entitled to vote generally in the election of directors ("Voting
Securities") of the Company, other than pursuant to a Business
Combination (as hereinafter defined) that complies with clauses (I),
(II), (III) and (IV) of subsection (iii) of this Section 1(b); or
(ii) the occurrence within any twelve-month period during the
term of the Agreement of a change in the Board with the result that
the Incumbent Members do not constitute a majority of the Board; or
(iii) consummation of (A) a reorganization, merger or
consolidation of the Company or any subsidiary of the Company, or
(B) a sale or other disposition of all or substantially all of the
assets
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of the Company (each, a "Business Combination"), unless, in
each case, immediately following such Business Combination, (I) all or
substantially all of the individuals and entities who were the
beneficial owners of Voting Securities of the Company immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than two-thirds of the then outstanding shares of
common stock and the combined voting power of the then outstanding
Voting Securities of the entity resulting from such Business
Combination (including, without limitation, an entity which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions relative to each
other as their ownership, immediately prior to such Business
Combination, of the Voting Securities of the Company, (II) no Person
(other than an Excluded Person, the Company, such entity resulting
from such Business Combination, or any employee benefit plan (or
related trust) sponsored or maintained by the Company, any subsidiary
or such entity resulting from such Business Combination), beneficially
owns, directly or indirectly, 25% or more of the then outstanding
shares of Voting Securities of the entity resulting from such Business
Combination, (III) at least a majority of the members of the Board of
Directors of the entity resulting from such Business Combination were
Incumbent Members of the Board at the time of the execution of the
initial agreement and of the action of the Board providing for such
Business Combination, and (IV) the Chief Executive Officer of the
Company immediately prior to the commencement of discussions (the
"Commencement Date") with the third party that results in the Business
Combination remains the Chief Executive Officer of the Company and the
entity resulting from such Business Combination (unless such Chief
Executive Officer ceases to constitute such by reason of death,
Disability (as defined in such Chief Executive Officer's Employment
Agreement with the Company, as it may be amended and restated from
time to time (the "Employment Agreement")), termination for Cause (as
defined in the Employment Agreement) or voluntary termination by such
Chief Executive Officer under circumstances that are not treated as an
involuntary termination under the Employment Agreement) during the
period commencing on the Commencement Date and throughout the twelve-
month period following the consummation of the Business Combination
(any Change in Control that may arise from the failure to satisfy the
condition specified in this clause (IV) to be effective as of the date
the Chief Executive Officer ceases to constitute such); or
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(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (I), (II), (III) and
(IV) of subsection (iii) of this Section 1(b).
"Excluded Person" shall mean (x) Xxxxxxx Xxxxx Capital Partners, Inc.,
Xxxxxxx Xxxxx Capital Appreciation Partnership No. B-XVIII, L.P., Xxxxxxx
Xxxxx Kecalp L.P. 1994, ML Offshore LBO Partnership No. B-XVIII, ML IBK
Positions, Inc., MLCP Associates L.P. No. II, MLCP Associates L.P. No. IV,
Xxxxxxx Xxxxx Kecalp L.P. 1991, Xxxxxxx Xxxxx Capital Appreciation
Partnership No. XIII, L.P., ML Offshore LBO Partnership No. XIII, ML
Employees LBO Partnership No. I, L.P., Xxxxxxx Xxxxx Kecalp L.P. 1987, and
Merchant Banking L.P. No. II (each, an "ML Entity" and collectively the "ML
Entities"), if the ML Entities shall have executed a written agreement with
the Company (and approved by the Company's Board of Directors) on or prior
to the date on which the ML Entities (together with its Affiliates) became
the beneficial owner of 25% or more of the shares of Voting Securities then
outstanding (the "Standstill Agreement"), which Standstill Agreement
imposes one or more limitations on the amount of the ML Entities'
beneficial ownership of shares of Common Stock, and if, and so long as,
such Standstill Agreement (or any amendment thereto approved by the
Company's Board of Directors by the vote of a majority of the Present
Directors) continues to be in effect and binding on the ML Entities and the
ML Entities are in compliance (as determined by the Company's Board of
Directors in its discretion by the vote of a majority of the Present
Directors) with the terms of such Standstill Agreement (including any such
amendment); or (y) any other Person acquiring Voting Securities from an ML
Entity if (i) such Voting Securities were acquired by an ML Entity pursuant
to the transactions contemplated by the Letter of Intent dated December 5,
1995 ("Letter of Intent") from the Company to US Foodservice Inc.
("Excluded Shares") and (ii) if, prior to such acquisition by such other
Person, a majority of the Present Directors has expressly determined in
good faith that such acquisition is not a "Change in Control" for purposes
of this Agreement ("ML Successor").
"Present Director" shall mean a member of the Board who (1) is not
designated as a member of the Board by any ML Entity or ML Successor,
(2) does not otherwise have any agreement, arrangement or understanding
with any ML Entity or ML Successor for the purpose of serving as a member
of the Board, and (3) is not an Affiliate or an Associate (as hereinafter
defined) of any ML Entity or ML Successor.
"Affiliate" and "Associate" shall have the meanings set forth in Rule
12b-2 of the '34 Act.
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The Board shall have the power to determine, for purposes of this
Agreement, on the basis of information known to the Board by a vote taken
in good faith by a majority of Present Directors, (1) whether any Person is
an Excluded Person, (2) the percentage of the Company's Voting Securities
beneficially owned by an Excluded Person, and (3) any determination to be
made pursuant to clause (x) of the definition of Excluded Person. Any such
determination shall be conclusive and binding for all purposes of this
Agreement.
(c) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) DATE OF TERMINATION. "Date of Termination" shall mean:
(i) if this Agreement is terminated by the Company for
Disability, 30 days after Notice of Termination is given to the
Executive (provided that the Executive shall not have returned to the
performance of the Executive's duties on a full-time basis during such
30-day period); or
(ii) if the Executive's employment is terminated by the Company
for any other reason, the date on which a Notice of Termination is
delivered to the Executive; provided that if within 30 days after any
Notice of Termination is delivered to the Executive by the Company the
Executive notifies the Company that a dispute exists concerning the
termination, the Date of Termination shall be the date the dispute is
finally determined, whether by mutual agreement by the parties, by one
or more qualified medical doctors in the case of Disability, or upon
final judgment, order or decree of a court of competent jurisdiction
(the time for appeal therefrom having expired and no appeal having
been perfected).
(e) DISABILITY. "Disability" shall mean the Executive's incapacity
due to physical or mental illness to substantially perform his duties on a
full-time basis for six consecutive months and within 30 days after Notice
of Termination is thereafter given by the Company the Executive shall not
have returned to the full-time performance of the Executive's duties;
provided, however, that if Executive shall not agree with a determination
to terminate him because of Disability, the question of Executive's ability
shall be subject to the certification of a qualified medical doctor agreed
to by the Company and the Executive or, in the event of the Executive's
incapacity to designate a doctor, the Executive's legal representative. In
the absence of agreement between the Company and the Executive, each party
shall nominate a qualified medical doctor and the two
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doctors shall select a third doctor, who shall make the determination
as to Disability.
(f) GOOD REASON. Termination for "Good Reason" shall mean:
(i) the assignment to the Executive by the Company of titles,
offices or duties which are not at least commensurate in all material
respects with the most significant position, title, office, duties,
responsibilities and status with the Company held and exercised by the
Executive immediately prior to a Change in Control of the Company, or
other action (including removal from office) by the Company which
results in a diminution in such position, title, office, duties,
responsibilities or status; or
(ii) a reduction by the Company in the Executive's base salary as
in effect on the date hereof or as the same may be increased from time
to time during the term of this Agreement or the Company's failure to
increase (within 12 months of the Executive's last increase in base
salary) the Executive's base salary after a Change in Control of the
Company in the amount which at least equals, on a percentage basis,
the average percentage increase in base salary for all officers of the
Company effected in the preceding 12 months; or
(iii) any failure by the Company to continue in effect any benefit
plan or arrangement (including, without limitation, the Company's
Profit Sharing Plan, group life insurance plan, and medical, dental,
accident and disability plans) in which the Executive is participating
at the time of a Change in Control of the Company (or any other plans
providing the Executive with substantially similar benefits)
(hereinafter referred to as "Benefit Plans"), or the taking of any
action by the Company which would adversely affect the Executive's
participation in or materially reduce the Executive's benefits under
any such Benefit Plan or deprive the Executive of any material fringe
benefit enjoyed by the Executive at the time of a Change in Control of
the Company; or
(iv) any failure by the Company to continue in effect any
incentive plan or arrangement (including, without limitation, the
Company's Senior Management Incentive Plan, bonus and contingent bonus
arrangements and credits and the right to receive performance awards
and similar incentive compensation benefits) in which the Executive is
participating at the time of a Change in Control of the Company (or
any other plans or arrangements providing him with substantially
similar benefits) (hereinafter referred to as "Incentive
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Plans") or the taking of any action by the Company which would
adversely affect the Executive's participation in any such
Incentive Plan or reduce the Executive's benefits under any such
Incentive Plan; or
(v) any failure by the Company to continue in effect any plan or
arrangement to receive securities of the Company (including, without
limitation, the Company's 1980 Stock Option Plan, 1988 Stock Option
and Compensation Plan and any other plan or arrangement to receive and
exercise stock options, stock appreciation rights, restricted stock or
grants thereof) in which the Executive is participating at the time of
a Change in Control of the Company (or plans or arrangements providing
him with substantially similar benefits) (hereinafter referred to as
"Securities Plans") or the taking of any action by the Company which
would adversely affect the Executive's participation in or materially
reduce the Executive's benefits under any such Securities Plan; or
(vi) a relocation subsequent to a Change in Control of the
Company's principal executive offices to a location more than 40 miles
from the location of such principal executive offices immediately
prior to the Change in Control, provided that such relocation shall
have no effect under this Agreement unless prior to the Change in
Control the Executive performed the Executive's duties at such
principal executive offices; or the Executive's relocation to any
place other than the location at which the Executive performed the
Executive's duties prior to a Change in Control, except for required
travel by the Executive on the Company's business to an extent
substantially consistent with the Executive's business travel
obligations at the time of a Change in Control; or
(vii) any failure by the Company to provide the Executive with the
number of paid vacation days to which the Executive is entitled at the
time of a Change in Control of the Company; or
(viii) any material breach by the Company of any provision of this
Agreement; or
(ix) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company; or
(x) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination and for
purposes of this Agreement, no such purported termination shall be
effective.
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(g) INCUMBENT MEMBERS. "Incumbent Members" shall mean (i) in respect
of any twelve-month period, the members of the Board on the date
immediately preceding the commencement of such twelve-month period,
PROVIDED THAT any person becoming a Director during such twelve-month
period whose election or nomination for election was supported by a
majority of the Directors who, on the date of such election or nomination
for election, comprised the Incumbent Members shall be considered one of
the Incumbent Members in respect of such twelve-month period, and (ii) in
respect of Clause (III) of Section 1(b)(iii), members of the Board on the
date hereof, provided that any person (other than an Affiliate, Associate,
nominee, representative or employee of any person (other than the Company)
that is a party to a Business Combination) becoming a Director and whose
election or nomination for election was supported by a majority of the
Directors who, on the date of such election or nomination for election,
comprised the Incumbent Members shall be considered one of the Incumbent
Members.
(h) NOTICE OF TERMINATION. A "Notice of Termination" shall mean a
written notice which shall indicate those specific termination provisions
in this Agreement relied upon and which sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. Any termination
by the Company shall be communicated by a Notice of Termination.
(i) '34 ACT. "'34 Act" shall mean the Securities Exchange Act of
1934, as amended.
2. TERM. This Agreement shall commence on the date first above written
and shall continue in effect until December 31, 1999; provided, however, that on
December 31, 1997 and on each December 31 (the "anniversary date") thereafter,
the term of this Agreement shall automatically be extended for one additional
year unless, not later than 90 days prior to such anniversary date, the Company
shall have given the Executive written notice that the Company does not wish to
extend the term of this Agreement (by way of illustration, on December 31, 1997,
assuming no notice to the contrary has been given, the term will automatically
be extended to December 31, 2000); and provided further that this Agreement
shall continue in effect beyond the term provided herein if such continuation is
provided for in a contract of employment between the Company and the Executive,
or if a Change of Control shall have occurred during such term or if any
obligation of the Company hereunder remains unpaid as of such time.
3. SEVERANCE COMPENSATION UPON A CHANGE IN CONTROL AND TERMINATION OF
EMPLOYMENT. If (a) a Change in Control of the Company shall have occurred while
the Executive is an employee of the Company, and (b) within two (2) years from
the date of such
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Change in Control (i) the Company shall terminate the Executive's employment
other than for death, Disability, or Cause (it being understood that a
purported termination for Disability or for Cause which is finally determined
not to have been proper shall not be a termination for Disability or for
Cause), or (ii) the Executive shall terminate his employment for Good Reason,
then
(A) the Company shall pay the Executive any earned and accrued but
unpaid installment of base salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given and all other
unpaid amounts to which the Executive is entitled as of the Date of
Termination under any compensation plan or program of the Company,
including, without limitation, all accrued vacation time; such payments to
be made in a lump sum on or before the fifth day following the Date of
Termination;
(B) in lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination, the Company shall pay to the
Executive an amount equal to the product of (i) the sum of (a) the
Executive's annual base salary in effect as of the Date of Termination and
(b) the amount that otherwise would be earned under the Senior Management
Incentive Plan and any other executive compensation plan in which the
Executive is then participating for the year in which such Date of
Termination occurs (assuming all such amounts under such plan had been
earned) and (ii) the number 2.99; such payment to be made in a lump sum on
or before the fifth calendar day following the Date of Termination;
(C) for a period of not less than twenty-four (24) months following
the Executive's Date of Termination, the Company will reimburse the
Executive for all reasonable expenses incurred by him (but not including
any arrangement by which the Executive prepays expenses for a period of
greater than thirty (30) days) in seeking employment with another employer
including the fees of a reputable outplacement organization; and
(D) for two (2) years following the Executive's Date of Termination,
the Company shall maintain in full force and effect for the continued
benefit of the Executive, all employee welfare benefit plans and perquisite
programs in which the Executive was entitled to participate immediately
prior to the Date of Termination (provided that the Executive's continued
participation is possible under the general terms and provisions of such
plans and programs). In the event that the Executive's participation in
any such plan or program is barred, the Company shall, at its sole cost and
expense, arrange to provide the Executive with benefits substantially
similar to those which the Executive would otherwise have been entitled to
receive under such
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plans and programs from which his continued participation is barred.
Anything in this Agreement to the contrary notwithstanding, if a Change in
Control occurs and the Executive's employment with the Company is terminated by
the Company or the Executive terminates his employment for Good Reason prior to
the date on which the Change in Control occurs, such termination of employment
shall be deemed to be a termination of employment after a Change in Control for
purposes of this Agreement, including, without limitation, this Section 3, if
the Executive shall have reasonably demonstrated that such termination of
employment (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control, or (ii) otherwise arose in
connection with or in anticipation of a Change in Control.
4. NO OBLIGATION TO MITIGATE DAMAGES; EFFECT ON OTHER CONTRACTUAL RIGHTS.
(a) The Executive shall not be required to mitigate damages or the amount of any
payment provided for under this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for under this Agreement
be reduced by any compensation earned by the Executive as the result of
employment by another employer after the Date of Termination, or otherwise.
(b) The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish the Executive's existing rights, or rights which would accrue solely as
a result of the passage of time, under any benefit plan, incentive plan or
securities plan, employment agreement or other contract, plan or arrangement,
except to the extent that such other contract, plan or arrangement expressly
provides that amounts paid hereunder shall be offset against the amounts
otherwise payable under such contract, plan or arrangement; PROVIDED, HOWEVER,
that if Executive becomes entitled to receive severance payments hereunder and
termination payments under Executive's Employment Agreement dated May 17, 1996
with the Company ("Executive's Employment Agreement"), then Executive's
termination payments under Executive's Employment Agreement shall be reduced by
the amount of severance payments payable under Section 3(B) of this Agreement,
but in no event shall such termination payments be reduced to an amount less
than zero.
5. SUCCESSOR TO THE COMPANY. (a) The Company will require any successor
or assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive,
expressly, absolutely and unconditionally to 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 or assignment had taken place. Any
failure of the Company to obtain
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such agreement prior to the effectiveness of any such succession or
assignment shall be a material breach of this Agreement and shall entitle the
Executive to terminate the Executive's employment for Good Reason. As used
in this Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor or assign to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this Section 5 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law. If at any time during the term of this Agreement the
Executive is employed by any corporation a majority of the voting securities
of which is then owned by the Company, "Company" as used in this Agreement
shall in addition include such employer. In such event, the Company agrees
that it shall pay or shall cause such employer to pay any amounts owed to the
Executive pursuant to Section 3 hereof.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
6. NOTICE. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company:
Xxxxxx-Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx Xxxxxxxxx Center
Xxxxxx-Xxxxx, Pennsylvania 18702-6980
Attn: Chairman of the Board and Chief Executive Officer
With copy to:
Xxxxxx-Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx Xxxxxxxxx Center
Xxxxxx-Xxxxx, Pennsylvania 18702-6980
Attn: General Counsel
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If to the Executive:
Xx. Xxxxx XxXxxxxx
000 Xxxxxxxxx Xx.
Xxxxxxxxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
7. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed to be a waiver of similar or dissimilar provision or conditions
at the same 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 set forth
expressly in this Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
8. VALIDITY. The invalidity or unenforceability of any provisions 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.
9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
10. FEES AND EXPENSES. The Company shall pay all reasonable fees and
expenses (including attorneys' fees) that the Executive may incur as a result of
the Company's contesting the validity, enforceability or the Executive's
interpretation of, or determinations under, this Agreement.
11. CONFIDENTIALITY. The Executive shall retain in confidence any and all
confidential information known to the Executive concerning the Company and its
business so long as such information is not otherwise publicly disclosed.
12. COMPANY'S RIGHT TO TERMINATE. Notwithstanding anything contained in
this Agreement to the contrary, except to the extent that the Executive has a
written employment agreement with the Company or as otherwise provided in the
final sentence of Section 3, the Company may terminate the
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Executive's employment at any time, for any reason or no reason, and no
provision contained herein shall affect the Company's ability to terminate
the Executive's employment at any time, with or without Cause. Except as
provided in the final sentence of Section 3, (a) nothing in this Agreement
shall in any way require the Company to provide any of the benefits specified
in this Agreement prior to a Change in Control, and (b) this Agreement shall
not be construed in any way to establish any policies or other benefits for
the Executive or any other employee of the Company whose employment with the
Company is terminated prior to a Change in Control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
XXXXXX-XXXXXX, INC.
By: /s/ Xxxx Xxx Xxxxxxxxxxxx
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Xxxx Xxx Xxxxxxxxxxxx
Chief Executive Officer and
Chairman of the Board
/s/ Xxxxx XxXxxxxx
-----------------------------------
Xxxxx XxXxxxxx
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