EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT is being executed effective as of the 18th day of September,
2005, by and between TBC CORPORATION (the "Company") and XXXXXXX X. XXXXX (the
"Executive"), under the following circumstances:
A. The Company and the Executive are parties to an Executive
Employment Agreement, dated as of September 18, 2005 (the "Employment
Agreement"). Among other things, the Employment Agreement provides certain
benefits to the Executive in the event that his employment is terminated
following a Change in Control of the Company (as defined therein).
B. As required by the Employment Agreement, the Company established a
trust for the benefit of the Executive with First Tennessee Bank National
Association (the "Trustee") pursuant to the terms of a Trust Agreement,
dated as of September 18, 2005 (the "Rabbi Trust"). Under the Rabbi Trust,
the Company is obligated to deposit with the Trustee, upon the earlier of
the occurrence of a Change of Control or a Potential Change of Control, as
defined in the Rabbi Trust, amounts which would become payable to the
Executive upon his termination of employment following a Change of Control
of the Company.
C. The Company expects to enter into a Merger Agreement (the "Merger
Agreement") with Sumitomo Corporation of America ("Parent") and its
wholly-owned subsidiary. For purposes of the Rabbi Trust, the execution of
the Merger Agreement will constitute a Potential Change of Control, and for
purposes of the Employment Agreement and the Rabbi Trust, a Change in
Control will occur upon consummation of the transactions contemplated by
the Merger Agreement.
D. The Parent has requested that the Executive agree, upon the terms
and conditions hereinafter set forth, to waive the requirement that the
Company fund the Rabbi Trust upon either the Potential Change of Control
which will occur when the Merger Agreement is executed or the Change in
Control which will occur upon consummation of the transactions contemplated
by the Merger Agreement.
E. Parent has advised the Executive and the Company that Parent will
not execute the Merger Agreement without the execution of this Agreement by
the Executive and the Company, and it is contemplated that this Agreement
will be executed immediately prior to the execution of the Merger
Agreement.
NOW, THEREFORE, IN CONSIDERATION OF AND RELIANCE UPON the mutual promises
hereinafter set forth and the Guarantee appended to the end of this Agreement,
the
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parties hereby agree that, notwithstanding the provisions of the Rabbi Trust,
(a) the execution of the Merger Agreement and the consummation of the
transactions contemplated thereby shall not constitute a Potential Change of
Control or a Change of Control, as such terms are used in the Rabbi Trust; and
(b) the Company shall not be obligated to make, and shall not make, any
contribution to the Trust pursuant to Section 5.2 or 5.3 thereof as a result of
the execution of the Merger Agreement or the consummation of the transactions
contemplated thereby.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
TBC CORPORATION
By /S/ XXXXXXXX X. DAY /S/ XXXXXXX X. XXXXX
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Xxxxxxxx X. Day, XXXXXXX X. XXXXX
President and Chief Executive Officer
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GUARANTEE
IN CONSIDERATION OF the Executive's execution of the foregoing Agreement,
the undersigned agree as follows: (i) contemporaneously with the Effective Time
(as defined in the Merger Agreement), the undersigned shall cause the Surviving
Corporation (as defined in the Merger Agreement) to assume and agree to perform
the Employment Agreement in the same manner and to the same extent as the
Company would be required to perform it if the transactions contemplated by the
Merger Agreement had not taken place; and (ii) contemporaneously with the
Effective Time, the undersigned shall be deemed to have jointly and severally
guaranteed to the Executive the full and complete performance by the Surviving
Corporation of its obligations to the Executive under the Employment Agreement.
THE UNDERSIGNED FURTHER AGREE that the provisions set forth in the
preceding paragraph shall be effective automatically at the Effective Time and
shall not require the execution of any further guarantee or other agreement by
the Surviving Corporation or either of the undersigned.
IN WITNESS WHEREOF, the undersigned have executed this Guarantee as of the
18th day of September, 2005.
SUMITOMO CORPORATION SUMITOMO CORPORATION
OF AMERICA
By By
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Name: Name:
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Title: Title:
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