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EXHIBIT 10.14
STATE OF NORTH CAROLINA
COMPENSATION AND BENEFITS
COUNTY OF MECKLENBURG ASSURANCE AGREEMENT
THIS COMPENSATION AND BENEFITS ASSURANCE AGREEMENT, entered into this
______ day of November, 1997, by and between Xxxxx, Inc., a North Carolina
corporation, (the "Company,") and __________________________, (the "Executive");
STATEMENT OF PURPOSE
Executive is a key employee of the Company, has contributed materially
to the successful operation of the Company's business and has rendered valuable
services to the Company. Moreover, Executive possesses intimate knowledge of the
Company, its history, operating methods, manufacturing and distribution systems,
personnel and products. Therefore, it is important to the continued success of
the Company that the Company continue to have the benefit of Executive's advice,
counsel and services, and for such reasons the Company desires to provide
Executive with the benefits set forth in this Compensation and Benefits
Assurance Agreement.
NOW, THEREFORE, in consideration of the Statement of Purpose and of the
mutual covenants and agreements herein set forth and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Executive do hereby agree as follows:
1. Definitions. As used in this Compensation and Benefits Assurance
Agreement, unless the context expressly indicates otherwise, the following terms
have the following meanings:
(a) "Affiliates" of an entity means any and all corporations and other
business entities which, directly or indirectly, control, are controlled by, or
are under common control with such entity.
(b) "Base Salary" means, at any time, the then regular annual rate of
pay which Executive is receiving as annual salary, excluding amounts (i)
designated by the Company as payment toward reimbursement of expenses or (ii)
received under incentive or other bonus plans, regardless of whether or not the
amounts are deferred.
(c) "Beneficial Owner" has the meaning ascribed to such term in Section
13(d) of the Exchange Act and Rule 13d-3 of the General Rules and Regulations
under the Exchange Act.
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(d) "Board" means the Board of Directors of the Company or any
committee of the Board to which the Board has delegated, either specifically or
generally, the duties and authority of the Board for the particular action or
determination required or permitted to be made by the Board.
(e) "Cause" means the occurrence of any one or more of the following:
(i) A demonstrably willful and deliberate act or failure
to act by Executive (other than as a result of
incapacity due to physical or mental illness) which
is committed in bad faith, without reasonable belief
that such action or inaction is in the best interests
of the Company, which causes actual material
financial injury to the Company and which act or
inaction is not remedied within fifteen (15) business
days of written notice from the Company; or
(ii) The Executive's conviction for committing an act of
fraud, embezzlement, theft, or any other act
constituting a felony involving moral turpitude or
causing material harm, financial or otherwise, to the
Company.
"Cause" must be determined by the Board in the exercise of good faith and
reasonable judgment.
(f) "Change in Control" means, and shall be deemed to have occurred
upon, the first to occur of any of the following events:
(i) Any Outside Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
representing twenty-five percent (25%) or more of the
combined voting power of the Company's then
outstanding securities; or
(ii) During any period of two (2) consecutive years (not
including any period prior to the date hereof),
individuals who at the beginning of such period
constitute the Board of Directors of the Company (and
any new Director, whose nomination for election by
the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the Directors then in
office who either were Directors at the beginning of
the period or whose nomination for election was so
approved) cease for any reason to constitute a
majority of the members of the Board of Directors of
the Company; or
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(iii) The stockholders of the Company approve: (i) a plan
of complete liquidation of the Company; or (ii) an
agreement for the sale or disposition of all or
substantially all of the Company's assets other than
a sale or disposition of all or substantially all of
the Company's assets to an entity at least sixty
percent (60%) of the combined voting power of the
voting securities of which are owned by the
stockholders of the Company in substantially the same
proportions as their ownership of the Company
immediately prior to such sale or disposition; or
(iv) The stockholders of the Company approve a merger,
consolidation, or reorganization of the Company with
or involving any other corporation, other than a
merger, consolidation, or reorganization that would
result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by
being converted into voting securities of the
surviving entity) or any parent thereof at least
sixty percent (60%) of the combined voting power of
the voting securities of the Company (or such
surviving entity) outstanding immediately after such
merger, consolidation, or reorganization.
However, in no event shall a "Change in Control" be deemed to have occurred if
Executive is part of a purchasing group which consummates the Change in Control
transaction. Executive shall be deemed "part of a purchasing group" for purposes
of the preceding sentence if Executive is an equity participant in the acquiring
company or group or surviving entity (the "Purchaser") except for ownership of
less than one percent (1%) of the equity of the Purchaser.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Company" means Xxxxx, Inc., a North Carolina corporation, and such
term includes any or all of its Affiliates.
(i) "Effective Date" means the date of this Compensation and Benefits
Assurance Agreement.
(j) "Excess Parachute Payment" means "excess parachute payment" within
the meaning of Section 280G of the Code.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor act thereto.
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(l) "Excise Tax" means the tax imposed on Excess Parachute Payments
pursuant to Section 280G and Section 4999 of the Code.
(m) "Good Reason" means the occurrence of any one or more of the
following, without Executive's prior express written consent, within the
thirty-six (36) calendar months immediately following a Change in Control:
(i) The assignment of Executive to duties inconsistent
with Executive's authorities, duties,
responsibilities, and status as an officer of the
Company, or a reduction or alteration in the nature
or status of Executive's authorities, duties or
responsibilities from those in effect as of one
hundred eighty (180) calendar days prior to the
Change in Control, other than an insubstantial and
inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by
Executive;
(ii) The Company's requiring Executive to be based at a
location in excess of fifty (50) miles from the
location of Executive's principal job location or
office immediately prior to the Change in Control,
except for required travel on the Company's business
to an extent consistent with Executive's then present
business travel obligations;
(iii) A reduction by the Company of Executive's Base Salary
in effect on the date hereof, or as the same shall be
increased from time to time;
(iv) The failure of the Company to keep in effect any of
the Company's compensation, health and welfare
benefits, or perquisite programs under which
Executive receives value, as such programs exist
immediately prior to the Change in Control; provided,
however, the replacement of an existing program with
a new program will be permissible (and not grounds
for a Good Reason termination if done for all
employees generally and the value to be delivered to
Executive under the new program is at least as great
as the value delivered to Executive under the
existing program); or
(v) Any breach by the Company of its obligations under
Paragraph 6 herein or any failure of a successor
company to assume and agree to perform the Company's
entire obligations under this Compensation and
Benefits Assurance Agreement as required by Paragraph
6 herein.
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"Good Reason" shall be determined by Executive in the exercise of good
faith and reasonable judgment. Executive's right to terminate
employment for Good Reason shall not be affected by Executive's
incapacity due to physical or mental illness. Executive's continued
employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason herein, and any
such consent or waiver must be in writing and signed by Executive.
(n) "Member of the Van Every Family" means (i) a lineal descendant of
Salem A. Van Every, Sr., including adopted persons as well as persons related by
blood, (ii) a spouse of an individual described in clause (i) of this Paragraph
1(n) or (iii) a trust, estate, custodian and other fiduciary or similar account
for an individual described in clause (i) or (ii) of this Paragraph 1(n).
(o) "Outside Person" means any Person other than (i) a Member of the
Van Every Family, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or (iii) a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(p) "Person" has the meaning ascribed to said term in Section 3(a)(9)
of the Exchange Act as modified and used in Sections 13(d) and 14(d) of the
Exchange Act, including a "group" as defined in Section 13(d) of the Exchange
Act.
(q) "Qualifying Termination" has the meaning ascribed to said term in
Paragraph 4(b) hereof.
(r) "Severance Benefits" has the meaning ascribed to said term in
Paragraph 4(c) hereof.
(s) "Termination of Employment" means any termination of employment
with either the Company or any successor to the Company that acquires all or
substantially all of the business and/or assets of the Company (whether direct
or indirect, by purchase, merger, consolidation or otherwise); provided,
however, no termination of employment shall be deemed to have occurred by reason
of such an acquisition unless there is either (i) a termination of employment
with both the Company and such successor or (ii) a termination of employment
with the Company and no successive employment by such successor.
2. Term of Agreement.
(a) [XXXX XXXXXX AND XXXX XXXXX VERSION] The term of this Compensation
and Benefits Assurance Agreement will commence on the Effective Date and shall
continue in effect through December 31, 2011 (the "Initial Term").
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(a) [STANDARD VERSION] The term of this Compensation and Benefits
Assurance Agreement will commence on the Effective Date and shall continue in
effect until the third anniversary of the Effective Date (the "Initial Term").
(b) The Initial Term of this Compensation and Benefits Assurance
Agreement automatically shall be extended for one additional year at the end of
the Initial Term, and then again after each one (1) year period thereafter (each
such one (1) year period following the Initial Term being hereinafter referred
to as a "Successive Period"). However, subject to Paragraph 2(c) herein either
party may terminate this Compensation and Benefits Assurance Agreement effective
at the end of the Initial Term or at the end of any Successive Period thereafter
(the "Expiration Date") by giving the other party written notice of such
termination and intent not to renew, delivered at least one (1) year prior to
the Expiration Date. If such notice is properly delivered by either party, this
Compensation and Benefits Assurance Agreement, along with all corresponding
rights, duties and covenants, shall automatically expire on the Expiration Date.
(c) Notwithstanding the foregoing, in the event that a Change in
Control occurs during the Initial Term or any Successive Period, upon the
effective date of such Change in Control the term of this Compensation and
Benefits Assurance Agreement shall automatically and irrevocably be renewed and
extended for a period of thirty-six (36) full calendar months from the effective
date of such Change in Control (the "Change in Control Renewal Period"), and
this Compensation and Benefits Assurance Agreement shall automatically terminate
upon the expiration of the Change in Control Renewal Period. Further, this
Compensation and Benefits Assurance Agreement shall be assigned to, and shall be
assumed by, the successor to the Company in such Change in Control as further
provided in Paragraph 6 herein.
3. Employment. The Company shall employ Executive to perform such tasks
as the Company shall specify from time to time. Executive agrees to devote his
full time during customary business hours and his best efforts to the business
and affairs of the Company. Executive's employment with the Company, however,
may be terminated by either Executive or the Company at any time, with or
without Cause, upon notice by the party wishing to terminate such employment to
the other party, and nothing in this Compensation and Benefits Assurance
Agreement shall give Executive any right to be retained in the employ of the
Company or, upon dismissal, any rights except as expressly otherwise provided
herein.
4. Change in Control Severance Benefits.
(a) The Company shall pay Executive the Severance Benefits described in
Paragraph 4(c) herein if during the Initial Term or any Successive Period a
Change in Control occurs and if within the thirty-six (36) calendar months
immediately following such Change in Control, Executive incurs a Qualifying
Termination. The Severance Benefits described in Subparagraphs (4)(c)(i) through
(iv) herein shall be paid to
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Executive in cash in a single lump sum as soon as practicable following
Executive's Qualifying Termination, but in no event later than thirty (30)
calendar days after such date. Notwithstanding the foregoing, however, Severance
Benefits which become due pursuant to Paragraphs 4(b)(iv) and 6(a) herein shall
be paid immediately.
(b) The occurrence of any one or more of the following events (a
"Qualifying Termination") within the thirty-six (36) calendar months immediately
following a Change in Control of the Company which occurred during the Term or
any Successive Period shall entitle Executive to receive the Severance Benefits:
(i) Executive's involuntary Termination of Employment
without Cause;
(ii) Executive's voluntary Termination of Employment for
Good Reason;
(iii) Executive's voluntary Termination of Employment, with
or without Good Reason, during the thirteenth (13th)
calendar month following the month during which the
Change in Control occurs; or
(iv) The Company, or any successor company, commits a
material breach of any of the provisions of this
Compensation and Benefits Assurance Agreement.
A Qualifying Termination shall not include Executive's Termination of Employment
within thirty-six (36) calendar months following a Change in Control by reason
of death, disability [as such term is defined under the Company's governing
disability plan (or any successor plan thereto)], Executive's voluntary
Termination of Employment without Good Reason except as otherwise expressly
provided in Paragraph 4(b)(iii) above, or Executive's involuntary Termination of
Employment for Cause. Moreover, a Termination of Employment which occurs before
a Change in Control or later than thirty-six (36) months following a Change in
Control shall not constitute a Qualifying Termination.
(c) The "Severance Benefits" provided for in Paragraphs 4(a) and (b)
herein are as follows:
(i) A lump-sum cash amount equal to the Executive's
unpaid Base Salary , accrued vacation pay,
unreimbursed business expenses, and all other items
earned by and owed to the Executive through and
including the date of Executive's Qualifying
Termination. Such payment shall constitute full
satisfaction for these amounts owed to Executive.
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(ii) A lump-sum cash amount equal to the sum of (A) three
(3) multiplied by the Executive's Base Salary in
effect upon the date of the Qualifying Termination
or, if greater, by Executive's Base Salary in effect
immediately prior to the occurrence of the Change in
Control plus (B) three (3) multiplied by the greater
of (I) Executive's annual bonus actually earned by
Executive (whether or not deferred) during the bonus
plan year which ended immediately prior to the
Qualifying Termination or (II) Executive's
then-current target bonus opportunity (stated in
terms of a percentage of Base Salary) established
under the Company's Annual Corporate Performance
Incentive Plan for Officers (or any successor plan
thereto), if any, for the incentive plan year in
which the date of Executive's Qualifying Termination
occurs.
(iii) A lump-sum cash amount equal to the greater of (A)
the Executive's then-current target bonus opportunity
(stated in terms of a percentage of Base Salary)
established under the Company's Annual Corporate
Performance Incentive Plan for Officers (or any
successor plan thereto), if any, for the incentive
plan year in which the date of Executive's Qualifying
Termination occurs, adjusted on a pro rata basis
based on the number of days Executive was actually
employed during such incentive plan year (but in no
event shall such target bonus be less than that in
effect for the period immediately prior to the
occurrence of the Change in Control); or (B) the
actual bonus earned through the date of the
Qualifying Termination under the Company's Annual
Corporate Performance Incentive Plan for Officers (or
any successor plan thereto), if any, based on the
then-current level of goal achievement. Such payment
shall constitute full satisfaction for these amounts
owed to Executive.
(iv) A lump-sum cash amount equal to the product
determined by multiplying (A) the sum of the amounts
payable under Subparagraphs 4(c) (i), (ii) and (iii)
herein by (B) the highest percentage of Executive's
compensation (eligible for such contributions)
contributed to the Executive's account under the
Xxxxx, Inc. Profit-Sharing Retirement Plan and Trust
(the "Retirement Plan") during the three (3)
consecutive plan years ended immediately prior to the
Qualifying Termination. The source of payment of this
sum shall be the general assets of the Company unless
the payment of such amounts is otherwise permissible
from the
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Retirement Plan without violating any governmental
regulations or statutes including, but not limited
to, ERISA discrimination testing requirements.
(v) At the exact same cost to Executive, and at the same
coverage level as in effect as of the date of
Executive's Qualifying Termination (subject to
changes in coverage levels applicable to all
employees generally), a continuation of the
Executive's (and Executive's eligible dependents')
health insurance coverage for thirty-six (36) months
from the date of the Qualifying Termination. The
applicable COBRA health insurance benefit
continuation period shall begin coincident with the
beginning of this thirty-six (36) month benefit
continuation period.
Provided, however, the provision of these health
insurance benefits shall be discontinued prior to the
end of the thirty-six (36) month continuation period
to the extent that Executive becomes covered under
the health insurance coverage of a subsequent
employer which does not contain any exclusion or
limitation with respect to any preexisting condition
of Executive or Executive's eligible dependents. For
purposes of enforcing this offset provision,
Executive shall have a duty to inform the Company if
Executive becomes covered under any such health
insurance of a subsequent employer. Executive shall
provide, or cause to provide, to the Company in
writing correct, complete, and timely information
concerning the same.
(vi) At no expense to Executive, standard outplacement
services for Executive from a nationally recognized
outplacement firm of Executive's selection, for a
period of up to two (2) years from the date of
Executive's Qualifying Termination. However, such
services shall be at the Company's expense to a
maximum amount not to exceed twenty percent (20%) of
the Executive's Base Salary as of the date of
Executive's Qualifying Termination.
5. Excise Tax Payment.
(a) Following a Qualifying Termination, if any portion of the Severance
Benefits or any other payment or benefits under any agreement with or plan of
the Company, including but not limited to stock options and other long-term
incentives, (hereinafter referred to in the aggregate as "Total Payments") will
be subject to the Excise Tax, the Company shall pay to Executive, in cash, an
additional amount (the "Gross-Up
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Payment") sufficient to cover the full cost of all Excise Taxes and Executive's
federal, state and local income and employment taxes on this additional payment
so that the net amount retained by Executive, after the payment of all Excise
Taxes on the Total Payments and all federal, state and local income and
employment taxes and Excise Taxes on the Gross-Up Payment, shall be equal to the
Total Payments. The Total Payments, however, shall be subject to any federal,
state and local income and employment taxes thereon. For this purpose, Executive
shall be deemed to be in the highest marginal rate of federal, state and local
taxes. The Gross-Up Payment shall be made at the same time as the Severance
Benefits described in Subparagraphs 4(c)(i) through (iv) herein are due.
(b) In the event the Internal Revenue Service subsequently adjusts the
Excise Tax computation made pursuant to Paragraph 5(a) above, the Company shall
pay Executive an additional Gross-Up Payment in the full amount necessary to
make Executive whole on an after-tax basis (less any amounts received by
Executive that Executive would not have received had the computations initially
been computed as subsequently adjusted), including the amount of any underpaid
Excise Tax, and any related interest and/or penalties due to the Internal
Revenue Service.
6. Assignment of This Agreement or Benefits Hereunder.
(a) Successors. The Company will require any successor (whether via a
Change in Control, direct or indirect, by purchase, merger, consolidation, or
otherwise) of the Company to expressly assume and agree to perform the
obligations under this Compensation and Benefits Assurance 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
assumption and agreement prior to the effectiveness of any such succession
shall, as of the date immediately preceding the date of a Change in Control,
automatically provide Executive with Good Reason to collect, immediately, full
benefits hereunder as a Qualifying Termination.
(b) Assignment by Executive. This Compensation and Benefits Assurance
Agreement shall inure to the benefit of and be enforceable by Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If an Executive should die while any
amount is still payable to Executive hereunder had the Executive continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Compensation and Assurance Benefits Agreement
to Executive's estate. Executive's rights hereunder shall not otherwise be
assignable.
7. Notices. Any notice required to be delivered to the Company by
Executive hereunder shall be properly delivered to the Company when personally
delivered to (including by a reputable overnight courier), or actually received
through the U.S. mail, postage prepaid, by:
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Xxxxx, Inc.
P. O. Box 32368
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: President
Any notice required to be delivered to Executive by the Company
hereunder shall be properly delivered to Executive when personally delivered to
(including by a reputable overnight courier), or actually received through the
U.S. mail, postage prepaid, by, Executive at his last known address as reflected
on the books and records of the Company.
8. Contractual Rights to Benefits. This Compensation and Benefits
Assurance Agreement establishes in Executive a right to the benefits to which
Executive is entitled hereunder. However, except as expressly stated herein,
nothing herein contained shall require or be deemed to require, or prohibit or
be deemed to prohibit, the Company to segregate, earmark, or otherwise set aside
any funds or other assets, in trust or otherwise, to provide for any payments to
be made or required hereunder. This Compensation and Benefits Assurance
Agreement is intended to be an unfunded general asset promise for a select,
highly compensated member of the Company's management and, therefore, is
intended to be exempt from the substantive provisions of the Employee Retirement
Income Security Act of 1974, as amended.
9. Legal Fees and Expenses. The Company shall pay all legal fees, costs
of litigation, prejudgment interest, and other expenses which are incurred in
good faith by Executive as a result of the Company's refusal to provide the
benefits to which Executive becomes entitled under this Compensation and
Assurance Benefits Agreement or under any other agreement with or plan of the
Company which would provide Executive with benefits or payments following a
Qualifying Termination (collectively "Termination Benefit Arrangements"), or as
a result of the Company's (or any third party's) contesting the validity,
enforceability, or interpretation of this Compensation and Benefits Assurance
Agreement or any Termination Benefits Arrangement, or as a result of any
conflict between the parties pertaining to this Compensation and Benefits
Assurance Agreement or any Termination Benefits Arrangement.
10. Exclusivity of Benefits. Unless specifically provided herein,
neither the provisions of this Compensation and Benefits Assurance Agreement nor
the benefits provided hereunder shall reduce any amounts otherwise payable, or
in any way diminish Executive's rights as an employee of the Company, whether
existing now or hereafter, under any compensation and/or benefit plans,
programs, policies, or practices provided by the Company, for which Executive
may qualify. Vested benefits or other amounts which Executive is otherwise
entitled to receive under any plan, policy, practice, or program of the Company
(i.e., including, but not limited to, vested benefits under the Company's
qualified employee benefit plans), at or subsequent to the date of Executive's
Qualifying
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Termination shall be payable in accordance with such plan, policy, practice, or
program except as expressly modified by this Compensation and Benefits Assurance
Agreement.
11. Includable Compensation. Severance Benefits provided hereunder
shall not be considered "includable compensation" for purposes of determining
Executive's benefits under any other plan or program of the Company unless
otherwise provided by such other plan or program.
12. Mitigation. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to Executive under any of the provisions of this Compensation and Benefits
Assurance Agreement, nor shall the amount of any payment hereunder be reduced by
any compensation earned by Executive as a result of employment by another
employer, other than as provided in Subparagraph 4(c)(v) herein.
13. Entire Agreement. This Compensation and Benefits Assurance
Agreement represents the entire agreement between the parties with respect to
the subject matter hereof, and supersedes all prior discussions, negotiations,
and agreements concerning the subject matter hereof, including, but not limited
to, any prior severance agreement made between Executive and the Company other
than the Executive Severance Agreement between Executive and the Company entered
into on the date hereof.
14. Tax Withholding. The Company shall withhold from any amounts
payable under this Compensation and Benefits Assurance Agreement all federal,
state, city, or other taxes as legally required to be withheld.
15. Waiver of Rights. Except as otherwise provided herein, Executive's
acceptance of Severance Benefits, the Gross-Up Payment (if applicable) and any
other payments required hereunder shall be deemed to be a waiver of all rights
and claims of Executive against the Company pertaining to any matters arising
under this Compensation and Benefits Assurance Agreement.
16. Severability. In the event any provision of this Compensation and
Benefits Assurance Agreement shall be held illegal or invalid for any reason,
the illegality or invalidity shall not affect the remaining parts of this
Compensation and Benefits Assurance Agreement, and this Compensation and
Benefits Assurance Agreement shall be construed and enforced as if the illegal
or invalid provision had not been included.
17. Applicable Law. To the extent not preempted by the laws of the
United States, the laws of the State of North Carolina shall be the controlling
law in all matters relating to this Compensation and Benefits Assurance
Agreement.
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18. Execution. This Compensation and Benefits Assurance Agreement is
hereby executed in duplicate originals, one of which is being retained by each
of the parties hereto.
IN WITNESS WHEREOF, Xxxxx, Inc. has caused this Compensation and
Benefits Assurance Agreement to be signed by its duly authorized officers, and
Executive has hereunto set his hand and seal, all as of the day and year first
above written.
"Company"
Xxxxx, Inc.
[Corporate Seal]
Attest: By:
-----------------------
__________ President
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Secretary
"Executive"
[SEAL]
---------------------
[Type Name]
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