EXHIBIT 10.6
Severance Benefit Agreement
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Table of Contents
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Page
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1. Change in Control 1
2. Termination of Employment Following a Change in Control 2
2.1 General 2
2.2 Termination for Disability 2
2.3 Termination for Company for "Cause" 3
2.4 Termination by Executive for Good Reason 4
2.5 Notice of Termination 5
2.6 Date of Termination 6
2.7 Prior Notice Required of Company Actions 6
3. Benefits upon Termination of Employment 6
3.1 General 6
3.2 Base Salary Through Date of Termination; Previously
Earned Bonus 6
3.3 Pro-Rata Bonus for Year of Termination 7
3.4 Monthly Severance Payments 7
3.5 Fringe Benefits (General) 7
3.6 Retirement Plans 8
3.7 Stock Options 8
3.8 Purchase of Company Car 9
3.9 Job Search Assistance; Legal Fees; etc. 9
3.10 Repurchase of Company Shares Owned by Executive 9
3.11 Termination Which Does Not Require Payment of
Termination Benefits 9
4. New Employment; Reduction of Termination Benefits 10
5. Voluntary Termination of Employment By Executive 10
6. Termination of Employment Prior to Change in Control 11
7. Successor; Binding Agreement 12
8. Miscellaneous 12
8.1 Notice 12
8.2 No Waiver 12
8.3 Enforceability 13
8.4 Disputes 13
8.5 Sections; Captions 13
8.6 Term of Agreement 13
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EXHIBIT 10.6
8.7 No Right of Offset 13
8.8 Successive Changes in Control 14
8.9 Interpretation of Agreement 14
ii
EXHIBIT 10.6
Severance Benefit Agreement
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This Severance Benefit Agreement (the "Agreement") is made as of May 9,
1984 by Xxxxxxx & Xxxxx, Incorporated, Xx. 0 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000 (the "Company") and XXXXXX X. XXXXXXXXX, XX., residing at 0000 X. Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000 (the "Executive").
RECITALS
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The Executive functions as Vice President, General Counsel and Secretary of
the Company on the date hereof and is one of the key employees of the Company.
The Company considers the maintenance of sound and vital management
essential to protecting and enhancing the best interests of the Company and its
shareholders. In this connection, the Company recognizes that in today's
business environment the possibility of a change in control of the Company may
exist in the future. The Company further recognizes that such possibility, and
the uncertainty which it may raise among key executives, could result in the
departure or distraction of key executives to the detriment of the Company and
its shareholders. Accordingly, the Board of Directors of the Company (the
"Board") has determined that appropriate steps should be taken (i) to further
induce the Executive to remain with the Company and (ii) to reinforce and
encourage the continued attention and dedication of the Executive to his
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company.
Now, Therefore, in consideration of the premises and for other good and
valuable considerations, receipt of which are hereby acknowledged, the Company
and the Executive do agree as follows:
1. Change in Control
-----------------
The Company may be required to provide certain benefits to the
Executive under this Agreement following each and every "Change in Control" of
the Company.
A "Change in Control" of the Company shall be deemed to have occurred
if:
(a) There is any change in control as contemplated by (i) Item 5(f)
of Schedule 14A, Regulation 14A, promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or (ii)
Item 1 of Form 8-K promulgated by the Securities and Exchange
Commission under the Exchange Act; or
(b) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
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EXHIBIT 10.6
indirectly, of 25% or more of the combined voting power of the
Company's then outstanding voting securities; or
(c) Those persons serving as directors of the Company on the date of
this Agreement (the "Original Directors") and/or their Successors
do not constitute a majority of the whole Board of Directors of
the Company (the term "Successors" shall mean those directors
whose election or nomination for election by the Company's
shareholders has been approved by the vote of at least two-thirds
of the Original Directors and previously qualified Successors
serving as directors of the Company at the time of such election
or nomination for election); or
(d) The Company shall be a party to a merger or consolidation with
another corporation and as a result of such merger or
consolidation, less than 75% of the outstanding voting securities
of the surviving or resulting corporation shall be owned in the
aggregate by the former shareholders of the Company as the same
shall have existed immediately prior to such merger or
consolidation; or
(e) The Company liquidates, sells, or otherwise transfers all or
substantially all of its assets to a person not controlled by the
Company both immediately prior to and immediately after such
sale.
2. Termination of Employment Following a Change in Control
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2.1 General
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During the 36 month period immediately following each and
every Change in Control (the "Protected Period"), the Executive and the Company
shall comply with all provisions of this Section 2 regarding termination of the
Executive's employment.
2.2 Termination for Disability
--------------------------
The Company may terminate the Executive's employment for
Disability. "Disability" shall mean the Executive's absence from, and his
inability to substantially perform, his duties with the Company for a continuous
period of six or more months as a result of physical causes or mental illness.
During any period prior to the termination of his employment that the Executive
is absent from, and is unable to substantially perform, his duties with the
Company as a result of physical causes or mental illness, the Company shall
continue to pay the Executive his full base salary at the rate then in effect
and any bonuses earned by the Executive under Company bonus plans until such
time as the Executive's employment is terminated by the Company for
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EXHIBIT 10.6
Disability. Following termination of employment, the Executive's benefits shall
be determined in accordance with the Company's long term disability program as
in effect on the date hereof, or any successor program then in effect.
2.3 Termination by Company for "Cause"
---------------------------------
The Company may terminate the Executive for Cause.
Termination for "Cause" shall be limited to the following:
(a) The Executive's conviction of any crime involving
money or other property of the Company or any of its
subsidiaries or of any other crime (whether or not
involving the Company or any of its subsidiaries) that
constitutes a felony in the jurisdiction involved; or
(b) The Executive's continued, repeated, willful
violations of specific written directions of the Board
or the Company's chief executive officer, which
directions are consistent with this Agreement and the
Executive's duties and do not constitute Company
Action as defined in Section 2.4 and which violations
continue following the Executive's receipt of such
written directions; or
(c) The Executive's continued, repeated, willful failure
to perform his duties; provided, however, that no
discharge shall be deemed for Cause under this
subsection (c) unless the Executive first receives
written notice from the Board or the Company's chief
executive officer advising the Executive of specific
acts or omissions alleged to constitute a failure to
perform his duties, and such failure continues after
the Executive shall have had a reasonable opportunity
to correct the acts or omissions so complained of.
No act or failure to act on the Executive's part shall be
considered "willful" unless done, or omitted to be done, by the Executive in bad
faith and without reasonable belief that his action or omission was in the best
interest of the Company. Moreover, the Executive should not be terminated for
Cause unless and until there shall have been delivered to the Executive a notice
of termination duly adopted by the affirmative vote of at least three-quarters
of the entire membership of the Board at a meeting of the Board called and held
for the purpose (after reasonable notice to the Executive and an opportunity for
the Executive, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Executive was guilty of the
conduct set forth in Section 2.3(a), (b) or (c) and specifying the particulars
thereof in detail.
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EXHIBIT 10.6
A termination shall not be deemed for Cause if, for example, the
termination results from the Company's determination that the Executive's
position is redundant or unnecessary or that the Executive's performance is
unsatisfactory or if the termination stems from the Executive's refusal to agree
to or accept any Company Action described and defined in Section 2.4.
2.4 Termination by Executive for Good Reason
----------------------------------------
The Executive may terminate his employment for "Good Reason" by
giving notice of termination to the Company following (i) any action or omission
by the Company described in this Section 2.4 or (ii) receipt of notice from the
Company of the Company's intention to take any such action or engage in any such
omission. The actions or omissions which may lead to a termination of employment
for Good Reason (herein collectively and severally "Company Actions") are as
follows:
(a) 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 or a failure by the Company to increase the
Executive's base salary each year during the Protected Period
by an amount which at least equals, on a percentage basis,
the average percentage increase in base salary for all
officers of the Company during the three full calendar years
immediately preceding the Change in Control; or
(b) A change in the Executive's reporting responsibilities,
titles or offices as in effect immediately prior to a Change
in Control; or
(c) The assignment to the Executive of any positions, duties or
responsibilities inconsistent in the good faith opinion of
the Executive with the Executive's positions, duties and
responsibilities with the Company immediately prior to the
Change in Control; or
(d) A failure by the Company (i) to continue any cash bonus or
other incentive plans substantially in the forms in effect
immediately prior to the Change in Control, or (ii) to
continue the Executive as a participant in such plans on at
least the same basis as the Executive participated in
accordance with the plans immediately prior to the Change in
Control; or
(e) A requirement by the Company that the Executive be based or
perform his duties anywhere other than at the Company's
Corporate Office location immediately prior to the Change in
Control, except for required travel on the Company's business
to an extent substantially consistent with the Executive's
business travel obligations immediately prior to the Change
in Control or, in the event the Executive consents to any
relocation, the failure by the Company to pay (or reimburse
the Executive for) all reasonable expenses incurred
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EXHIBIT 10.6
by him relating to a change of his prinicpal residence in
connection with such relocation and to indemnify the
Executive against any loss realized on the sale of his
principal residence in connection with any such change of
residence (loss is defined as the difference between the
actual sale price of such residence and the higher of (i) the
aggregate investment in such residence (including
improvements thereto) or (ii) the fair market value of such
as determined by a real estate appraiser designated by the
Executive and reasonably satisfactory to the Company); or
(f) A failure by the Company to continue in effect any benefit or
other compensation plan (e.g., stock ownership plan, stock
purchase plan, stock option plan, life insurance plan, health
and accident plan or disability plan) in which the Executive
is participating at the time of a Change in Control (or plans
providing the Executive with substantially similar benefits),
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 of such plans or deprive
the Executive of any material fringe benefit enjoyed by him
at the time of the Change in Control, or the Company's
failure to provide the Executive with the number of paid
vacation days to which he is entitled in accordance with the
Company's normal vacation practices with respect to the
Executive at the time of the Change in Control; or
(g) A failure by the Company to obtain the assumption agreement
to perform this Agreement by any successor as contemplated by
Section 7 of this Agreement; or
(h) Any purported termination of the Executive's employment that
is not carried out (i) pursuant to a notice of termination
which satisfies the requirements of Section 2.5 or (ii) in
accordance with Section 2.3, if applicable; and for purposes
of this Agreement, no such purported termination shall be
effective.
2.5 Notice of Termination
---------------------
Any purported termination by the Company of the Executive's
employment under Section 2.2 (Disability) or 2.3 (for Cause) or by the Executive
under Section 2.4 (for Good Reason) shall be communicated by notice of
termination to the other party. A notice of termination shall mean a notice
which shall include the specific termination Section in this Agreement relied
upon and shall set forth in reasonable detail, the facts and circumstances
claimed to provide a basis for termination of employment under the Section so
indicated.
2.6 Date of Termination
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5
EXHIBIT 10.6
The date the Executive's employment is terminated under this
Agreement for Disability, for Cause or for Good Reason is called the "Date of
Termination". In cases of Disability, the date of termination shall be 30 days
after notice of termination is given (provided that the Executive shall not have
returned to the performance of his duties on a full-time basis during such 30
day period). If the Executive's employment is terminated for Cause, the Date of
Termination shall be the date specified in the notice of termination. If the
Executive's employment is terminated for Good Reason, the Date of Termination
shall be the date set out in the notice of termination.
Any dispute by a party hereto regarding a notice of termination
delivered to such party must be conveyed to the other party within 30 days after
the notice of termination is given. If the particulars of the dispute are not
conveyed within the 30 day period, then the disputing party's claims regarding
the termination shall be forever deemed waived.
2.7 Prior Notice Required of Company Actions
----------------------------------------
During the Protected Period, the Company shall not terminate the
Executive's employment (except for Disability or for Cause) or take any Company
Action as defined in Section 2.4 without first giving the Executive at least
three months' prior notice of termination or the planned Company Action, as the
case may be.
3. Benefits upon Termination of Employment
---------------------------------------
3.1 General
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If, during the Protected Period following each Change in
Control, the Executive's employment is terminated either (i) by the Company
(other than for Disability or Cause) or (ii) by the Executive for Good Reason,
then the Executive, shall be entitled to the benefits provided in this Section 3
(collectively and severally "Termination Benefits").
3.2 Base Salary Through Date of Termination; Previously Earned
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Bonus
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The Company shall promptly pay the Executive his full base
salary through the Date of Termination at the rate in effect at the time notice
of termination is given. In addition, the Company shall promptly pay the amount
of any bonus for a past period which has been earned by the Executive but not
yet paid under the applicable bonus plan. The Company shall give the Executive
credit for any vacation earned but not taken.
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EXHIBIT 10.6
3.3 Pro-Rata Bonus for Year of Termination
--------------------------------------
The Company shall pay the Executive a pro-rata bonus for
the year in which his employment terminates. The pro-rata bonus shall be equal
to "A" divided by "B" with the quotient multiplied by "C" where:
(a) "A" equals the number of days the Executive is employed by
the Company in the year in which the termination of
employment occurs (the "Termination Year");
(b) "B" equals 365; and
(c) "C" equals the maximum bonus the Executive would have been
eligible for in the Termination Year.
The pro-rata bonus shall be paid by the Company in a lump
sum, concurrently with the first severance pay installment provided for in
Section 3.4.
3.4 Monthly Severance Payments
--------------------------
The Company shall pay the Executive the aggregate
severance payments equal to (i) 136% of the Executive's annual base salary as of
the date of the Change in Control or as of the Date of Termination, whichever is
greater, multiplied by (ii) three. The severance payments shall be made in 36
equal, consecutive monthly installments, with the first installment to be on the
first day of the first month immediately following the Date of Termination. The
136% figure in this Section shall be appropriately increased or decreased if and
as the Executive's maximum annual bonus potential (expressed as a percentage of
his annual base salary) is increased or decreased.
3.5 Fringe Benefits (General)
-------------------------
The Company shall maintain in full force, the continued
benefit of the Executive for three years after the Date of Termination, all
employee benefit plans, programs and/or arrangements (collectively and severally
"Benefit Plans") in which the Executive was entitled to participate immediately
prior to the Date of Termination provided the Executive's continued
participation is possible under the general terms and provisions of such Benefit
Plans. If the Executive's participation in any such Benefit Plan is barred, the
Company shall arrange to provide the Executive with benefits substantially
similar to those which the Executive is entitled to receive under such Plans. At
the end of the three year period of coverage, the Executive shall have the
option to have assigned to him at no cost and with no apportionment of prepaid
premiums, any assignable insurance policy owned by the Company and relating
specifically to the Executive.
3.6 Retirement Plans
----------------
7
EXHIBIT 10.6
The Company shall pay the Executive in cash a lump sum
additional retirement benefit. Such benefit shall be paid at the Executive's
normal retirement age (or earlier retirement age should the Executive so elect)
as defined in the retirement programs in which the Executive participates or any
successor programs in effect on the date of any Change in Control. Such
additional benefit shall be equal to the actuarial equivalent of the additional
retirement benefit to which the Executive would have been entitled under such
retirement programs had he accumulated three additional years of continuous
service (following the Date of Termination) under such retirement programs both
for purposes of determining eligibility for benefits and for purposes of
calculating the amount of such benefits. If any retirement program requires
contributions by participants and the Executive is precluded by the terms of the
program from making such contributions following the Date of Termination, then
the amount of additional retirement benefit payable under this Section 3.6 shall
be equitably adjusted to reflect the absence of contributions by the Executive.
The benefits under this Section 3.6 are in addition to
those the Executive may be entitled to under the retirement programs in
question. In addition, the benefits provided under this Section 3.6 do not in
any way limit the benefits payable to the Executive under Section 3.5.
3.7 Stock Options
-------------
The Company shall at the request of the Executive
accelerate and make immediately exercisable in full all unexercised stock
options which the Executive then holds to acquire securities from the Company.
This shall be done, to the maximum extent possible, in a manner that will allow
the Executive, upon the exercise of any such options, to obtain favorable
Federal Income tax treatment. The Executive's request may be made at any time
during the period beginning with the giving of the notice of termination and
ending three months after the Executive's employment terminates (the "Option
Election Period").
Instead of exercising any or all outstanding stock options
then held by him, the Executive may elect during the Option Exercise Period to
surrender to the Company his rights in such outstanding stock options (whether
or not then exercisable). Upon such surrender, the Company shall pay to the
Executive an amount in cash per optioned share equal to the difference between
(i) the option price of such share and (ii) the higher of: (x) the closing price
of the Company's shares on the date of the Change in Control, (y) the closing
price of the Company's shares on the date the options (or in the case of Section
3.10, the shares) are surrendered to the Company, or (z) the highest price per
Company share actually paid in connection with any Change in Control of the
Company.
If, within six months of the taking of any Company Action
under Section 2.4, the Executive dies while still employed by the Company, the
Executive's estate shall be entitled, upon notice to the Company within 90 days
of the Executive's death, to be paid an amount equal to the amount the Executive
would have received had
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EXHIBIT 10.6
he surrendered all of his stock options under this Section as of the date
preceding his death. Such amount shall be paid in cash by the Company within 45
days after receipt of the notice and the delivery of an instrument surrendering
all rights the Executive's estate may have held to the stock options.
3.8. Purchase of Company Car
-----------------------
The Company shall permit the Executive during the Option
Election Period to purchase any Company automobile the Company was providing for
the Executive's use at the time notice of termination was given. The purchase
price shall be the book or wholesale value of such automobile at such time,
whichever is lower.
3.9 Job Search Assistance; Legal Fees; etc.
---------------------------------------
The Company shall reimburse the Executive for the costs of
his job search, including air fares, telephone conversations, advertisements,
executive placement or search fees and the like to the extent not reimbursed by
others. In addition, the Company shall provide the Executive with adequate
secretarial assistance and office space while the Executive's job search
continues. The Company shall promptly reimburse the Executive for all relocation
costs to the extent such reimbursement is not made by the Executive's new
employer. The Company's obligations under this first paragraph of Section 3.9
shall terminate three years from the Date of Termination.
The Company shall pay all relocation and indemnity
payments as set forth in Section 2.4(e), and all legal fees and expenses
incurred by the Executive as a result of the termination of his employment
(including all such fees and expenses, if any, incurred in contesting or
disputing any such termination of employment or in seeking to obtain or enforce
any right or benefit provided by this Agreement).
3.10 Repurchase of Company Shares Owned by Executive
-----------------------------------------------
Upon request made during the Option Election Period, the
Company shall purchase all Company shares owned by the Executive immediately
prior to the Date of Termination. Within 45 days after the request is made, the
Executive's shares properly endorsed and free of all claims shall be delivered
to the Company. Thereupon, the Company shall pay the purchase price in cash. The
purchase price shall be the highest price per share that can be computed under
Section 3.7.
3.11 Termination Which Does Not Require Payment of Termination
---------------------------------------------------------
Benefits
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No Termination Benefits need be provided by the Company to
the Executive under this Section 3 if the Executive's employment is terminated:
(a) By his death; or
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EXHIBIT 10.6
(b) By the Executive for any reason other than for Good
Reason (e.g. by retirement); or
(c) By the Company for Disability or for Cause.
As used herein, retirement by the Executive means
termination of employment in accordance with the Company's normal retirement
policy, including early retirement, generally applicable to the Company's
salaried employees or in accordance with any special retirement arrangement
jointly established by the Company and the Executive and mutually agreeable to
both.
4. New Employment; Reduction of Termination Benefits
-------------------------------------------------
The Termination Benefits provided under Section 3 shall not be treated
as damages, but rather shall be treated as severance compensation to which the
Executive is entitled. The Executive shall not be required to mitigate the
amount of any Termination Benefit provided under Section 3 by seeking other
employment or otherwise. If, however, following a termination of employment
which invokes Section 3, the Executive becomes employed full time by a third
party (as distinguished from becoming self-employed or being employed by an
employer controlled by the Executive and/or members of his immediate family),
then the amount of any cash compensation (including base salary and bonuses)
received by the Executive from such third party shall reduce on a dollar for
dollar basis, but not below zero, the amount of cash payments which the
Executive is thereafter entitled to receive under Section 3.4. In addition, any
fringe benefits that the Executive may receive from full time employment by a
third person (as distinguished from self-employment or employment by an employer
controlled by the Executive and/or members of his immediate family) shall be
applied against and reduce any fringe benefits thereafter to be made available
to the Executive under Section 3.5. In no event shall the Executive be required
to return to the Company any Termination Benefits received by him prior to his
commencement of full time employment with a third person.
5. Voluntary Termination of Employment by Executive
------------------------------------------------
If the Executive voluntarily terminates his employment with the
Company for any reason (including retirement) within one year of any Change in
Control described in this Section, then the Executive may in his sole discretion
elect to receive, and the Company shall provide, the following benefits and no
others under this Agreement:
(a) The Company shall promptly pay the Executive those salary, bonus
and vacation payments provided for in Section 3.2, which section
is incorporated by reference in this Section 5.
(b) The Company shall promptly pay the Executive the pro-rata bonus
provided for in Section 3.3, which section is incorporated by
reference in this Section 5.
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EXHIBIT 10.6
(c) The Company shall promptly pay the Executive a non-forfeitable
lump sum cash termination payment equal to 75% of the Executive's
total cash compensation for the calendar year immediately
preceding the Date of Termination of his employment.
(d) The Company shall provide the Executive for one year with those
fringe benefits described in Section 3.5, which section is
incorporated by reference in this Section 5. The fringe benefits
provided under this subsection (d) shall be reduced by any fringe
benefits the Executive may thereafter receive from full time
employment by a third person (as distinguished from self-
employment).
If the Executive does not elect to receive benefits under this Section
5, then he shall remain eligible to receive Termination Benefits in accordance
with the provisions of Section 3.
The only Change in Control that will permit an Executive to make an
election under this Section 5 is a Change in Control that is opposed by a
majority vote of the Board and in connection with such Change in Control or as a
result thereof:
(a) A majority of the whole Board becomes comprised of persons other
than Original Directors or their Successors (as those terms are
defined in Section 1(c)); or
(b) Any person (as defined in Section 1(b)) becomes the beneficial
owner (as defined in Section 1(b)); directly or indirectly of 50%
or more of the combined voting power of the Company's then
outstanding voting securities.
6. Termination of Employment Prior to Change in Control
----------------------------------------------------
Prior to a Change in Control, the Executive shall not voluntarily
terminate his employment with the Company except upon at least three months'
prior notice. Similarly, the Company shall not terminate the Executive's
employment other than for Cause except upon at least three months' prior notice.
7. Successor; Binding Agreement
----------------------------
The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly 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 (the assumption
shall be by agreement in form and substance satisfactory to the Executive).
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this
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EXHIBIT 10.6
Agreement and shall entitle the Executive, at his election, to Termination
Benefits from the Company in the same amount and on the same terms as the
Executive would be entitled to hereunder if he terminated his employment for
Good Reason, except that for purposes of implementing the foregoing, the date on
which any such election becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
7 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there be no such designee, to his estate.
8. Miscellaneous
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8.1 Notice
------
All notices, elections, waivers and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly give when delivered or mailed by United States certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth on the first page of this Agreement, or to 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.
8.2 No Waiver
---------
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by an officer of the Company. No waiver by either party at any time of
any breach by the other party of, or compliance with, any condition or provision
of this Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions 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.
8.3 Enforceability
--------------
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.
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EXHIBIT 10.6
8.4 Disputes
--------
Notwithstanding the pendency of any dispute involving this
Agreement, the Company shall continue to pay all amounts and provide all
benefits which the Executive alleges are required by this Agreement
(collectively the "Disputed Benefits") until the dispute is finally resolved by
agreement, litigation or otherwise. If the dispute is resolved in the Company's
favor, then the person(s) resolving the dispute shall further determine (i)
whether the Executive initiated and continued the dispute in good faith and (ii)
whether there was a reasonable basis for the allegations made by the Executive.
If it is determined the Executive proceeded in good faith and with a reasonable
basis for his allegations, then the Executive shall not be required to reimburse
the Company for the Disputed Benefits received by him. Otherwise the Executive
shall be required (i) to fully reimburse the Company for the actual cost to the
Company of providing the Disputed Benefits and (ii) to pay the Company as
liquidated damages a lump sum cash payment equal to 20% of the Disputed
Benefits.
8.5 Sections; Captions
------------------
All references in this Agreement to Section refer to the
applicable Sections of this Agreement. References in this Agreement to a given
Section (e.g. Section 3) shall, unless the context requires otherwise, refer to
all parts of such Section (e.g. 3.1 through 3.10).
The captions have been placed in this Agreement for ease of
reference only. They shall not be used in the interpretation of this Agreement.
8.6 Term of Agreement
----------------
This Agreement shall continue in force so long as the Executive
remains employed by the Company or any successor and shall apply to any Change
in Control that occurs while the Executive remains so employed.
8.7 No Right of Offset
-----------------
Effective upon the occurrence of a Change in Control, the Company
waives, and will not assert, any right to set off the amount of any claims,
liabilities, damages or losses the Company may have against any amounts payable
by the Company to the Executive whether under this Agreement or otherwise.
8.8 Successive Changes in Control
-----------------------------
A separate Change in Control shall be deemed to have occurred
with each occurrence of any event described at subsections (a) through (e) of
Section 1. This Agreement pertains to each and every Change in Control,
including successive Changes in Control involving the same controlling
persons(s).
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EXHIBIT 10.6
8.9 Interpretation of Agreement
---------------------------
In the event of any ambiguity, vagueness or other matter
involving the interpretation or meaning of this Agreement, this Agreement shall
be liberally construed so as to provide to the Executive the full benefits set
out herein.
IN WITNESS WHEREOF, this Agreement has been signed as of the day and
year first above written.
Attest: Xxxxxxx & Xxxxx, Incorporated
/s/ XXXXXX X. XXXX By: /s/ XXXXX X. XXXXXXX, XX.
------------------- --------------------------
/s/ XXXXXX X. XXXXXXXXX, XX.
----------------------------
Executive
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