EXHIBIT 10.35
XXXXXX ELECTRONICS CORPORATION
AMENDED AND RESTATED EXECUTIVE CHANGE IN CONTROL SEVERANCE AGREEMENT
Amended and Restated Executive Change in Control Severance Agreement (this
"Agreement") entered into this 9th day of July, 2001 by and between Xxxxxx
Electronics Corporation, a Delaware corporation (the "Company") and Xxxx
Xxxxxxxxxxx (the "Executive"). This Agreement amends and restates in its
entirety that certain Executive Change in Control Severance Agreement entered
into the 26th day of April, 2000 by and between the Company and the Executive
(the "Prior Agreement").
The Board of Directors of the Company desires to assure continuity of management
and the continued attention of the Executive to his duties without any
distraction in the event of a Change in Control.
The Company and the Executive desire to enter into this Agreement on the terms
and conditions set forth below. For good and valuable consideration and the
mutual covenants set forth herein the parties hereto agree as follows:
1. DEFINITIONS.
The following terms shall have the meaning set forth below
for purposes of this Agreement.
a. "Base Compensation" means (i) the annual rate of base salary
of the Executive as of the date of a Change in Control (or, in
the case of an Anticipatory Termination (as defined in Section
2.1 below), as of the date of termination of the Executive's
employment), plus (ii) the actual Annual Incentive Plan bonus
paid for performance in the calendar year immediately
preceding the date of a Change in Control (or, in the case of
an Anticipatory Termination, the calendar year immediately
preceding the date of the Executive's termination) or target
bonus, whichever is greater.
b. "Cause" means the Executive's (i) conviction of, or plea of
nolo contendere to, a felony; (ii) use or sale of illegal
drugs; or (iii) willful and intentional misconduct, willful
neglect or gross negligence, in the performance of the
Executive's duties, which the Company reasonably believes has
caused a demonstrable and serious injury to the Company,
monetary or otherwise; provided, however, that such acts or
events shall constitute Cause only if the Executive is given
written notice that the Company intends to terminate his
employment for Cause, which notice shall specify the
particular acts or failures to act on the basis of which the
decision to so terminate employment was made. In the case of
a termination for Cause as described in clause (iii) above,
the Executive shall be given the opportunity within 30 days
of the receipt of such notice to meet with the Company to
defend such acts or failures to act, prior to termination.
The Company may suspend the Executive's title and authority
pending such meeting, and such suspension shall not
constitute "Good Reason", as otherwise defined in this
agreement.
c. "Change in Control" means
(i) a change in ownership of the common stock of the
Company (note: "common stock of the Company" refers
to the common stock of Xxxxxx Electronics
Corporation, not General Motors Corporation, Class H
common stock or GMH), whether by sale, merger,
consolidation or reorganization pursuant to which
General Motors Corporation (or any entity that
succeeds to the auto business of General Motors
Corporation, e.g., as a result of a spin-off or
otherwise) does not own directly or indirectly more
than 50% of the outstanding common stock, in value,
of the Company or any successor surviving entity;
provided, however, that if following any such change
the Company or its successor is subject to the
periodic reporting rules of the Securities Exchange
Act of 1934 (the "Exchange Act"), and no "person" or
"group" is the "beneficial owner", as each such term
is defined for purposes of the Exchange Act, of
stock representing more than 5% of the outstanding
voting power of all classes of stock of the Company,
such change in ownership shall not constitute a
Change in Control for purposes hereof;
(ii) the sale or distribution of all or substantially all
of the assets of the Company to an unrelated entity
or entities or to an entity in which General Motors
Corporation does not directly or indirectly own more
than 50% in value of the equity of such entity; and
(iii) a sale or other disposition, or the last sale
or other disposition to occur in a series of sales
and/or other dispositions within any 5 year period
("Serial Sales") directly or indirectly by the
Company of assets constituting one or more discrete
business units (including any sale through a public
offering of shares of voting stock of a subsidiary)
which accounts for (or in the case of stock sold
through a public offering, which represents indirect
ownership on a proportionate basis of such assets
accounting for) more than 40% of the annual
consolidated revenues of the Company and its
subsidiaries as of the end of the previous fiscal
year (in the case of Serial Sales, as of the end of
the fiscal year immediately preceding the year in
which the last sale or other disposition occurs) as
determined in accordance with generally accepted
accounting principles; provided, however, that, if
the Executive is not employed substantially
exclusively in connection with one or more of the
discrete businesses involved in such sale(s) or other
disposition(s), no sale or disposition of assets or
stock shall be taken into account to the extent that
the proceeds of such sale or disposition (whether in
cash or in-kind) are reinvested or are, in the case
of proceeds received in-kind, used in the ongoing
conduct by the Company or one or more of its
subsidiaries of the business of the Company and/or
such subsidiary or subsidiaries; and provided further
that such a reinvestment shall not be deemed to have
occurred unless made within 18 months of such sale or
disposition; and provided further that the term
reinvestment
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shall exclude, inter alia, the use of proceeds (x) to
repay debt incurred in connection with the operation
of the business in which the assets sold or disposed
of were used or (y) to pay dividends.
(iv) in addition to the events described in subsection
(iii), it shall be a "Change in Control" for
purposes hereof for any Executive who is employed
substantially exclusively in the business of a
Designated Business Unit, as hereinafter defined, if
an event described in subsection (iii) shall occur,
except that for purposes of this subsection (iv),
references in subsection (iii) to the "Company"
shall be deemed to refer to the Designated Business
Unit in the business of which the Executive is
principally employed. A Change in Control described
in this subsection (iv) shall apply only to an
Executive employed substantially exclusively by the
affected Designated Business Unit. For purposes of
this subsection (c)(iv), "Designated Business Unit"
shall mean PanAmSat, DIRECTV, Xxxxxx Network
Systems, Galaxy Latin America and any other business
unit identified as a Designated Business Unit by the
Company from time to time.
(v) any provision of the foregoing to the contrary
notwithstanding, the reorganization of the Company
involving the disposition of its satellite systems
businesses shall not constitute a Change in Control,
for purposes hereof.
d. "Code" means the Internal Revenue Code of 1986, as amended.
e. "Company" means Xxxxxx Electronics Corporation and its
successors and assigns.
f. "Comparable Position" means a position with the successor to
the business of the Company, General Motors Corporation or its
affiliates, of relatively equal or greater scope of
responsibility and authority, equal or greater base
compensation, equal or greater aggregate incentive
compensation payout targets, and equal or greater aggregate
benefits and perquisites, as constituted immediately prior to
the Change in Control and located within 50 miles of the
Executive's then current principal place of employment.
g. "Good Reason" means any of the following events occurring
within three (3) years following a Change in Control:
(i) without the Executive's written consent, (A) any
reduction in the amount of the Executive's annual
salary, (B) any reduction in the Executive's
aggregate incentive compensation opportunities, (C)
any significant reduction in the aggregate value of
the Executive's benefits as in effect from time to
time (unless such reduction is pursuant to a general
change in benefits applicable to all similarly
situated executives of the Company), or
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(D) any material and willful breach by the Company of
a written employment agreement with the Executive;
(ii) a significant reduction, without the Executive's
written consent, in the Executive's position,
authority, duties or responsibilities (including, for
example, a significant diminution of the Executive's
reporting requirements) as in effect immediately
prior to a Change in Control;
(iii) without the Executive's written consent, a transfer
of the Executive's principal place of employment to a
location more than 50 miles from the Executive's
place of employment immediately prior to the Change
in Control, provided that the distance between the
new principal place of employment and the Executive's
primary residence is more than 10 miles greater than
the distance between the principal place of
employment prior to such transfer and the Executive's
primary residence immediately prior to the Change in
Control.
Notwithstanding the above, the occurrence of any of the events
described in (i), (ii) or (iii) above will not constitute`
Good Reason unless the Executive gives the Company written
notice, within 30 calendar days after the Executive knew or
should have known of the occurrence of any of the events
described in (i), (ii) or (iii) above, that such event
constitutes Good Reason, and the Company thereafter fails to
cure the event within 30 days after receipt of such notice.
h. "Term" means the period commencing on July 9, 2001, and
continuing for 5 years through July 8, 2006.
i. "Severance Compensation" means three (3) times Base
Compensation.
2. ACCRUED COMPENSATION AND SEVERANCE BENEFITS.
2.1 Involuntary Termination.
In the event that within three (3) years following a Change in
Control that occurs during the Term, (i) the Executive's employment is
terminated by the Company without Cause or (ii) the Executive
terminates his or her own employment with the Company for Good Reason,
and in each case the Executive does not receive an offer of employment
for a Comparable Position, the Executive shall be entitled to severance
compensation and other benefits as set forth in Sections 2.2, 2.3, 2.4
and 2.5 below. Notwithstanding any other provision of this Agreement,
if the Executive's employment is terminated prior to a Change in
Control by the Company other than for Cause and if such termination (1)
was at the request or initiation of a third party who has taken steps
reasonably calculated to effect the Change in Control or (2) otherwise
arose in connection with or in anticipation of the Change in Control
(an "Anticipatory Termination"), then the Chairman of the Company's
Board of Directors may determine that the Executive shall be entitled
to
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severance compensation and other benefits as set forth in Sections 2.2,
2.3, 2.4 and 2.5 below.
2.2 Accrued Compensation.
The accrued compensation to which the Executive is entitled
pursuant to Section 2.1 shall be as follows:
a. an amount equal to the Executive's unpaid annual base salary
earned as of the date of termination;
b. an amount equal to the Executive's unpaid targeted annual
bonus established for the fiscal period in which the Change in
Control occurs (or, in the case of an Anticipatory
Termination, the fiscal period in which the termination of
employment occurs), multiplied by a fraction, the numerator of
which is the number of days elapsed in the current fiscal
period to the date of termination, and the denominator of
which is 365;
c. an amount equal to the Executive's unpaid targeted long term
incentive plan payments under plans established up to and
including the fiscal period in which the Change in Control
occurs (or, in the case of an Anticipatory Termination, the
fiscal period in which the termination of employment occurs),
multiplied by a fraction the numerator of which is the number
of days elapsed from the beginning of the plan period to the
date of termination, and the denominator of which is 1,095;
and
d. all Company stock options held by the Executive, other than
stock options granted on June 22, 2001 (the "June 22
Options"), shall become fully vested and shall remain
exercisable in accordance with the Xxxxxx Electronics
Corporation Incentive Plan.
2.3 Amount of Severance Pay.
a. The amount of severance pay to which the Executive is
entitled pursuant to Section 2.1 shall be equal to the
Severance Compensation. Payment shall be conditioned upon
delivery by the Executive to the Company of a written release
in the form attached hereto as Exhibit A (subject to such
changes as may be necessary to reflect changes in applicable
law). Payment shall be made in the form of a lump sum cash
payment within ten (10) days following the effectiveness of
such release. Such Severance Compensation shall be in lieu of
any other payments or benefits in the nature of severance pay
or benefits which the Executive has received or will receive
from the Company or any of its affiliates (including without
limitation, payments under the Xxxxxx Employment Transition
Assistance Plan or other severance pay plan, or any severance
agreements between the Company and the Executive, but
excluding any benefits arising out of options granted under
the Company's Retention Option Programs or any other Company
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plan or program designated as a "retention plan" or "retention
program"). Any other arrangement providing severance benefits
shall be deemed to be amended to eliminate any obligation for
benefits to be provided thereunder. If the Executive is
entitled to any notice or payment in lieu of any notice of
termination of employment required by Federal, state or local
law, including but not limited to the Worker Adjustment and
Retraining Notification Act, the Severance Compensation to
which the Executive would otherwise be entitled under this
Agreement shall be reduced by the amount of any such payment,
in lieu of notice.
b. There shall be no duplication of severance benefits in any
manner. In this regard, the Executive shall not be entitled to
Severance Compensation hereunder for more than one position
with the Company and its affiliates. Options and other stock
based awards granted under the Company's stock award plans,
including without limitation the Company's Retention Option
Programs, shall not be considered severance benefits for
purposes of this Section b.
c. The Executive's Severance Compensation under this Agreement
shall not be reduced by the amount of any regular salary paid
or payable by any employer of the Executive. The Executive
shall not be obligated to secure new employment (except to the
extent that he/she is offered a Comparable Position), but
shall be obligated to report promptly to the Company any
actual employment obtained during the period for which
employee benefits continue pursuant to Section 2.4.
2.4 Other Benefits.
a. The Executive shall be entitled to participate on the same
basis as similarly situated active executives in the
Company's group health, dental and vision plans, or the
Company shall make available comparable benefits, (but not
any other welfare benefit plans or any retirement plans,
except as described below) for a period of three (3) years
following a termination of employment described in Section
2.1 (provided that the coverage provided under this Section
2.4a is subject to any limitations under the terms of any
applicable contract with an insurance carrier or third
party administrator), except that such coverage shall
expire if the Executive becomes eligible for coverage under
a plan of another employer. Nothing herein shall be deemed
to restrict the right of the Company to amend or terminate
any such plan in a manner generally applicable to similarly
situated active executives of the Company and its
affiliates, in which event the Executive shall be entitled
to participate on the same basis (including payment of
applicable contributions) as similarly situated active
executives of the Company and its affiliates.
b. The Executive shall be entitled to reimbursement for actual
payments made for professional outplacement services, not to
exceed 15% of base salary at the date of termination of
employment.
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c. In determining the Executive's pension benefit under this
provision, the Executive will be deemed to have accrued
additional continuous service, benefit service and final
average pay up through the date he/she would have satisfied
the rule of 75 (the "CIC Accrued Benefit"). The CIC Accrued
Benefit will be payable from the Xxxxxx Salaried Employees
Excess Benefit Plan (the "Excess Plan") and will be present
valued to his/her actual date of termination of employment
using a rate of 6.5% or the GATT interest rate whichever is
greater. In addition, the CIC Accrued Benefit shall be deemed
eligible for "COLA" benefits under the Excess Plan.
2.5 Stock Option Vesting. Notwithstanding anything contained in any stock
option or other equity incentive plan or agreement, in the event of a
Change in Control (or, in the case of an Anticipatory Termination, upon
the occurrence of such termination), all Company stock options, other
than June 22 Options, held by the Executive shall become fully vested
and exercisable with respect to all shares subject thereto beginning
ten (10) days immediately prior to the closing date of such Change in
Control.
3. PARTICIPANT OBLIGATIONS.
a. Confidential Information, Non-solicitation and Non-Compete.
Notwithstanding anything to the contrary in this Agreement,
payment shall be subject to the satisfaction by the Executive
of the conditions precedent that the Executive: (i) refrain
from engaging in any activity which, in the opinion of the
Company, is competitive with any activity of GM, Xxxxxx or any
of their respective subsidiaries, which shall be defined to
include, but is not limited to, accepting employment with a
competitor or otherwise providing services outside of GM,
Xxxxxx or any of their respective subsidiaries, or
establishing a competing business for a period of two years
following termination without the Company's prior written
consent where it is reasonably determined by the Company,
after considering the nature and extent of the
employment/services/business, and the geographical region and
the duration of time from the Executive's separation from
employment, that the Executive is likely to disclose or
utilize confidential or proprietary information (including
trade secrets) in the employment, business or when providing
the services, (ii) refrain from otherwise acting, either prior
to or after termination of employment, in any manner which is
in any way contrary to the best interests of GM, Xxxxxx, or
any of their respective subsidiaries, (iii) maintain the
confidentiality of all proprietary, sensitive or confidential
Company information obtained while the Company employed the
Executive, (iv) not solicit or hire or participate in an
employer's hire of the Company's employees for employment
outside of the Company for a period of two years following
termination, (v) assign to the Company all rights to any
invention Executive has developed or will develop relating at
the time of conception or reduction to practice to GM, Xxxxxx,
or any of their respective subsidiaries' business, or
resulting from work Executive performed, and (vi) furnish to
the Company such information with respect to the satisfaction
of the foregoing conditions precedent.
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b. Executive Cooperation. For a period of two years following
termination, the Executive agrees to assist the Company
without further compensation with respect to any business
matters that may arise that involved the Executive during the
course of employment with the Company. The Executive shall be
entitled to reimbursement of reasonable expenses.
c. General Release and Waiver. In exchange for the benefits
provided under this Agreement, the Executive will sign a
General Release and Waiver of Claims upon Separation in the
form attached hereto as Exhibit A (subject to such changes as
may be necessary to reflect changes in applicable law). No
payments under this Agreement will begin until the effective
date of the General Release and Waiver of Claims.
d. Confidentiality. The Executive agrees to hold his or her
participation in the Agreement confidential. The Executive may
disclose the Agreement to immediate family, and personal
legal, financial and tax counsel. The Company may disclose
the Agreement as required by the needs of the business.
4. EXCISE TAXES.
a. Anything in this Agreement to the contrary notwithstanding and
except as set forth below, if it is determined that any
payment or distribution by the Company to or for the benefit
of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional
payments required under this Section 4) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code,
or any interest or penalties are incurred by Executive with
respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively
referred to as the Excise Tax"), then Executive shall be
entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by Executive of
all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any
income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this paragraph
"a", if it is determined that Executive is entitled to a
Gross-Up Payment, but that Executive, after taking into
account the Payments and the Gross-Up Payment, would not
receive a net after-tax benefit of at least $50,000 (taking
into account both income taxes and any Excise Tax) as compared
to the net after-tax proceeds to Executive resulting from an
elimination of the Gross-Up Payment and a reduction of the
payments, in the aggregate, to an amount (the "Reduced
Amount") such that the receipt of Payments would not give rise
to any Excise Tax then no Gross-Up Payment shall be made to
Executive and the Payments, in the aggregate, shall be reduced
to the Reduced Amount.
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b. Subject to the provisions of paragraph "a", all determinations
required to be made under this Section 4, including whether
and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by the Company's
independent certified public accountants serving immediately
prior to the Change in Control (the "Accounting Firm"), which
shall be retained to provide detailed supporting calculations
both to the Company and Executive within 15 business days of
the receipt of notice from Executive that there has been a
Payment, or such earlier time as is required by the Company.
In the event that the Accounting Firm is also serving as
accountant or auditor for the individual, entity or group
effecting the Change in Control, the Company shall, prior to
the Change in Control, appoint another nationally recognized
public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as
the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 4,
shall be paid by the Company to Executive within 5 days of the
receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the
Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made
hereunder. If the Company exhausts its remedies pursuant to
paragraph "c" below and Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and
any such Underpayment shall be promptly paid by the Company to
or for the benefit of Executive.
c. Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no
later than 10 business days after Executive is informed in
writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is
requested to be paid or appealed. Executive shall not pay such
claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies
Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably required by
the Company relating to such claim;
(ii) take such action in connection with contesting such
claims as the Company shall reasonably request in writing
from time to time, including
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without limitation, accepting legal representation
with respect to such claim by an attorney reasonably
selected by the Company;
(iii) cooperate with the Company in good faith in order to
effectively contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the
Company shall bear and pay directly all costs and
expenses (including additional interest and
penalties) incurred in connection with such contest
and shall indemnify and hold Executive harmless, on
an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect
thereto) imposed as a result of such representation
and payment of costs and expenses. Without limitation
on the foregoing provisions of this paragraph "c",
the Company shall control all proceedings taken in
connection with such contest and, at its sole option,
may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with
the taxing authority in respect of such claim and
may, at its sole option, either direct Executive to
pay the tax claimed and xxx for a refund or to
contest the claim in any permissible manner, and
Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine;
provided, however, that if the Company directs
Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to
Executive, on an interest-free basis, and shall
indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect
thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such
advance; and further provided that any extension of
the statute of limitations relating to payment of
taxes for the taxable year of Executive with respect
to which such contested amount is claimed to be due
is limited solely to such contested amount.
Furthermore, the Company's control of the contest
shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder, and
Executive shall be entitled to settle or contest, as
the case may be, any other issue raised by the
Internal Revenue Service or any other taxing
authority.
d. If, after the receipt by Executive of an amount advanced by
the Company pursuant to paragraph "c" above, Executive becomes
entitled to receive any refund with respect to such claim,
Executive shall (subject to the Company's complying with the
requirements of paragraph "c" above) promptly pay to the
Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If
after the receipt by Executive of any amount advanced by the
Company pursuant to paragraph "c" above, a determination is
made that Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify
Executive in writing of its intent to contest such
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denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall
not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
5. RELATIONSHIP OF THIS AGREEMENT TO ANY PRIOR AGREEMENT.
Effective as of the first date indicated above, this
Agreement represents and contains the entire agreement between the
Company and Executive relating to the matters described herein, and
supersedes all prior discussions and agreements, whether oral or
written (including, without limitation, the Prior Agreement).
6. CLAIMS & ARBITRATION.
a. Arbitration of Claims. After the Executive has exhausted all
administrative remedies provided in applicable plans, if any,
Executive shall settle by arbitration any dispute or
controversy arising in connection with this Agreement, whether
or not such dispute involves a plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
Such arbitration shall be conducted in accordance with the
employment rules of the American Arbitration Association
sitting in Los Angeles, California. The award of the
arbitrators shall be final and non-appealable, and judgment
may be entered on the award of the arbitrators in any court
having proper jurisdiction. All expenses of such arbitration
shall be borne by the Company in accordance with Section 6b
hereof.
b. Payment of Legal Fees and Costs. The Company agrees to pay as
incurred, to the full extent permitted by law, all legal fees
and expenses which Executive may reasonably incur as a result
of any contest (regardless of the outcome thereof) by the
Company, Executive or others of the validity or enforceability
of, or liability under, any provision of this Agreement of any
guarantee of performance thereof (including as a result of any
contest by Executive about the amount of payment pursuant to
this Agreement), plus in each case interest on any delayed
payment at the applicable federal rate provided for in Section
7872 (f) (2) (A) of the Code.
c. Agent for Service of Legal Process. Service of legal process
with respect to a claim under this Agreement shall be made
upon the General Counsel of the Company.
7. TAX WITHHOLDING.
All payments to the Executive under this Agreement will be
subject to the withholding of all applicable employment and income
taxes.
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8. UNSECURED GENERAL CREDITOR.
Executives and their Beneficiaries, heirs, successors and
assigns shall have no legal or equitable rights, interests or claims in
any property or assets of the Company. For purposes of the payment of
benefits under this Agreement, any and all of the Company's assets
shall be, and remain, the general, unpledged unrestricted assets of the
Company. The Company's obligation under the Agreement shall be merely
that of an unfunded and unsecured promise to pay money in the future.
9. COMPANY LIABILITY.
The Company's liability for the payment of benefits shall be
defined only by the Agreement. The Company shall have no obligation to
an Executive under the Agreement except as expressly provided in the
Agreement.
10. NONASSIGNABILITY.
Neither an Executive nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage
or otherwise encumber, transfer, hypothecate, alienate or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are expressly
declared to be, unassignable and non-transferable. No part of the
amounts payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by an Executive or any
other person, be transferable by operation of law in the event of an
Executive's or any other person's bankruptcy or insolvency or on
dissolution of the Executive's marriage.
11. EMPLOYMENT RIGHTS.
This Agreement shall not confer upon the Executive any right
to the continuation of employment with the Company.
12. SEVERABILITY.
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect.
13. SUCCESSORS.
This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of the Company. The Company
will require any successor 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 if no succession had taken place.
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14. NOTICES.
Any notice required under this Agreement shall be in writing
and shall be delivered by certified mail return receipt required to
each of the parties as follows:
To the Executive: to the address appearing for Executive
in the personnel records of the Company
To the Company: Xxxxxx Electronics Corporation
General Counsel
000 X. Xxxxxxxxx Xxxx.
Xx Xxxxxxx, XX 00000-0000
or to such other address as either party shall have furnished to the
other in writing in accordance herewith.
15. GOVERNING LAW.
The provisions of this Agreement shall be construed in
accordance of the laws of the State of California, to the extent not
preempted by ERISA.
[SIGNATURE PAGE FOLLOWS]
13
IN WITNESS WHEREOF, the Executive and the Company have executed this Agreement
as of the date and year first above written.
/s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Executive
Xxxxxx Electronics Corporation
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
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EXHIBIT A
FORM OF RELEASE
EXHIBIT A
GENERAL RELEASE AND WAIVER OF CLAIMS UPON SEPARATION
This General Release and Waiver of Claims upon Separation
("Release") is entered into by the undersigned, _________________ ("Employee")
and Xxxxxx Electronics Corporation, its parent, subsidiary and affiliated
companies ("Xxxxxx"), collectively referred to as "Parties."
In exchange for the consideration set forth in the Amended and
Restated Executive Change in Control Severance Agreement dated _______________,
2001 which is incorporated herein, Employee hereby acknowledges full and
complete satisfaction and hereby releases and forever discharges Xxxxxx and each
of its agents, directors, officers, and employees from any and all claims
arising from or connected with his employment by, or separation from Xxxxxx,
including but not limited to, any actions brought in tort or for breach of
contract, or claims arising under the California Labor Code, Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act ("ADEA") the
California Fair Employment and Housing Act, the Fair Labor Standards Act, the
Equal Pay Act, the Employee Retirement Income Security Act of 1974, and any
other federal or state statute, law or regulation relating to employment.
It is understood and agreed that this Release covers all known
or unknown or unanticipated injuries, claims or damages.
In accordance with the Older Workers Benefit Protection Act of
1990, Employee is aware of the following with respect to his release of any
claims under the ADEA:
(1) He has the right to consult with an attorney before
signing this Release.
(2) He has twenty-one (21) days, in which to consider this
Release and any ADEA claim; and
(3) He has seven (7) days after signing this Release to
revoke his release.
This Release shall not be effective until the expiration of
seven (7) days following its execution by Employee.
Employee represents and agrees to keep the terms and
conditions of this Release and the Separation Agreement strictly confidential
and Employee agrees not to disclose its contents to anyone other than his
immediate family and professional representatives who likewise are bound by
confidentiality, or as may be required by applicable law.
This Release shall not be deemed or construed as an admission
of liability or wrongdoing by Xxxxxx or others released herein.
Employee understands and agrees that he will immediately turn
over to Xxxxxx all documents and property which he has received from Xxxxxx
which are the property of Xxxxxx. After separation, Employee will comply with
his obligation not to use Company proprietary or confidential information.
Employee affirms and represents that he is entering into this
Release freely and voluntarily, and that he is acting under no other inducement,
or under any coercion, threat or duress. Employee acknowledges that the contents
of this document have been explained to him and he understands the meaning and
legal effect of this Release.
Dated:_________________________________
