1
EXHIBIT 10.8
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (the "Agreement") is made and entered
into as of April 10, 2001, by and between Xxxxxxxxxxx Industries, Inc., an
Indiana corporation (the "Company"), and _______________ (the "Executive").
WHEREAS, the Company considers it essential to the best interests of
its shareholders to xxxxxx continuous employment by the Company and its
subsidiaries of their key management personnel;
WHEREAS, the Compensation Committee (the "Committee") of the Board of
Directors (the "Board") of the Company has recommended, and the Board has
approved, that the Company enter into Change in Control Agreements with key
executives of the Company and its subsidiaries who are from time to time
designated by the Management of the Company and approved by the Committee;
WHEREAS, the Committee and the Board believe that Executive has made
valuable contributions to the productivity and profitability of the Company and
consider it essential to the best interests of the Company and its shareholders
that Executive be encouraged to remain with the Company; and
WHEREAS, the Board believes it is in the best interests of the Company
and its shareholders that Executive continue in employment with the Company in
the event of any proposed Change in Control (as defined below) and be in a
position to provide assessment and advice to the Board regarding any proposed
Change in Control without concern that Executive might be unduly distracted by
the personal uncertainties and risks created by any proposed Change in Control:
NOW, THEREFORE, the Company and Executive agree as follows:
1. TERMINATION FOLLOWING A CHANGE IN CONTROL. The Company will provide
or cause to be provided to Executive the rights and benefits described in
Section 2 hereof in the event that Executive's employment with the Company and
its subsidiaries is terminated:
(a) by the Company for any reason other than on account of
his death, permanent disability, retirement or for Cause at any time prior to
the second anniversary of a Change in Control; or
(b) by Executive for Good Reason at any time prior to the
second anniversary of a Change in Control.
Anything in this Agreement to the contrary notwithstanding, if a Change
in Control occurs and if the Executive's employment with the Company is
terminated by the Company, without Cause, prior to the date on which the Change
in Control occurs, and if it is reasonably
1
2
demonstrated by Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with or anticipation of
a Change in Control which subsequently occurs within 3 months of such
termination, then for purposes of this Agreement (including Section 3 hereof) a
Change in Control shall be deemed to have occurred on the day immediately prior
to such termination of employment and all references in Section 2 to payments
within a specified period following "Termination" shall instead be references to
the specified period following the Change in Control.
The rights and benefits described in Section 2 and 3 hereof shall be in
lieu of any severance payments otherwise payable to Executive under any
employment agreement or severance plan or program of the Company or any of its
subsidiaries but shall not otherwise affect Executive's rights to compensation
or benefits under the Company's compensation and benefit programs except to the
extent expressly provided herein.
2. RIGHTS AND BENEFITS UPON TERMINATION.
In the event of the termination of Executive's employment under any of
the circumstances set forth in Section 1 hereof ("Termination"), the Company
shall provide or cause to be provided to Executive the following rights and
benefits provided that Executive executes and delivers to the Company within 30
days of the Termination a Release in the form attached hereto as Exhibit A:
(a) a lump sum payment in cash in the amount of two times
Executive's Annual Base Salary (as defined below), payable within 30 days of
Termination;
(b) for the 24 months following Termination, continued health
and medical insurance coverage for Executive and his dependents substantially
comparable (with regard to both benefits and any employee contributions) to the
coverage provided by the Company immediately prior to the Change in Control for
active employees of equivalent rank. From the end of such 24-month period until
Executive attains Social Security Retirement Age, Executive shall have the right
to purchase (at COBRA rates applicable to such coverage) continued coverage for
himself and his dependents under one or more plans maintained by the Company for
its active employees, to the extent Executive would have been eligible to
purchase continued coverage under the plan in effect immediately prior to the
Change in Control had his employment terminated 24 months following Termination;
(c) a lump sum payment in cash, payable within 30 days of
Termination, equal to the unpaid portion of the Perquisite Compensation to which
Executive is entitled for the year of Termination plus the amount of Perquisite
Compensation to which Executive would be entitled for one additional year based
on his Annual Base Salary;
(d) a lump sum payment in cash, payable within 30 days of
Termination, equal to the unpaid portion of the car allowance to which Executive
is entitled for the year of Termination plus the amount of car allowance for one
additional year;
2
3
(e) except as provided otherwise in this paragraph,
continuation for Executive, for a period of two years following Termination, of
the Split Dollar Life Insurance Program (if any) provided for Executive by the
Company immediately prior to the Change in Control and the group term life
insurance program provided for executive immediately prior to the Change in
Control. The Company shall be under no obligation to provide insurance benefits
with reference to a Split Dollar Life Insurance Program that has terminated
between the date of the Change in Control and Executive's Termination under
[sub-sections (a), (b), or (c) of Section 4.1] of such program's agreement
between the policy owner and the Company. The company shall be under no
obligation to provide insurance benefits with reference to a Split Dollar Life
Insurance Program that has terminated between the date of the Change in Control
and Executive's Termination by notice from the policy owner under [subsection
(d) of Section 4.1] of such agreement. If Executive is a participant in a Split
Dollar Life Insurance Program, the Company may nevertheless elect to exercise
its right to terminate the Split Dollar Life Insurance Program under Section
[4.1(d)] of the program agreement between the policy owner and the Company. If
the Company elects to exercise such right, the Company shall provide insurance
coverage with a face amount comparable to the then current face amount (net of
the Company's interest) in the split-dollar policy, at no greater cost to the
policy owner and the Executive, until the completion of the two-year period
following Termination. Nothing in the paragraph shall prevent Company and the
policy owner from agreeing to provide such comparable coverage through a
modification of their agreement under the Split Dollar Life Insurance Program;
(f) a lump sum payment in cash, payable within 30 days of
Termination, equal to all accrued and unpaid vacation, reimbursable business
expenses, and similar miscellaneous benefits as of the Termination; and
(g) a monthly pension annuity benefit starting at age 62 or
the current age, if later (in the form of a joint and 50% survivor annuity)
equal to the difference between (i) the monthly Pension Plan annuity benefit,
the monthly Supplemental Pension Plan annuity benefit if Executive is a
participant in the Supplemental Pension Plan, and any additional pension benefit
provided in an offer letter (or other written letter) if Executive is subject to
such an offer letter (or other written letter), which Executive will receive
starting at age 62 or the current age, if later (in the form of a joint and 50%
survivor annuity), and (ii) the monthly pension annuity benefit he would have
received starting at age 62 or the current age, if later under such plan(s)
and/or offer letter, as in effect on April 10, 2001, (in the form of a joint and
50% survivor annuity) calculated as if Executive had earned two additional years
of service and pay at his Annual Base Salary (and for purposes of calculating
Average Monthly Earnings as defined in the Pension Plan, Executive Annual Base
Salary shall be annualized for any portion of the imputed service period which
is less than a full calendar year and such portion of the year shall be eligible
to be counted). The monthly pension annuity benefit described in the prior
sentence shall be paid at the same time(s) and in the same form as Executive's
benefit under the Pension Plan (with the same actuarial adjustments as used in
calculating benefits under the Pension Plan). The benefit provided for in this
paragraph shall be funded in a rabbi trust prior to the Change in Control. For
purposes of this subparagraph (g), the benefit under clause (ii) will be
calculated as though the Pension Plan and Supplemental Plan as in effect on May
10, 2001 remained the same.
3
4
3. ADDITIONAL BENEFITS UPON A CHANGE IN CONTROL.
Upon the occurrence of a Change in Control, so long as
Executive is an employee of the Company at that time, the Company will provide
or cause to be provided to Executive the following rights and benefits whether
or not Executive's employment with the Company or its subsidiaries is
terminated:
(a) a lump sum payment in cash equal to the amount of
Short-Term Incentive Compensation which would be payable to Executive if the
company performance targets (at 100%) with respect to such incentive
compensation in effect for the entire year in which the Change in Control
occurred had been achieved, payable within 30 days of the Change in Control;
(b) the number of shares of common stock of the Company that
would be payable to Executive as Performance Share Compensation under all
performance share periods in progress at the date of the Change in Control as if
the target goal for each such performance share period was achieved 100%,
without proration for uncompleted performance share periods, provided, however,
that if the Change in Control involves a merger, acquisition or other corporate
restructuring where the Company is not the surviving entity (or survives as a
wholly-owned subsidiary of another entity), then, in lieu of such shares of
common stock of the Company, Executive shall be entitled to receive the
consideration he would have received in such transaction in exchange for such
shares of common stock; and provided, further, that the Company shall in any
case have the right to substitute cash for such shares of common stock of the
Company or merger consideration in an amount equal to the fair market value of
such shares or merger consideration as determined by the Company;
(c) immediate vesting of all mandatory deferred shares
attributable to Performance Share Compensation,
(d) immediate vesting of all outstanding options held by
Executive under the Xxxxxxxxxxx Industries, Inc. 1996 Stock
Options Plan; and
(e) immediate vesting of all awards of Restricted Stock
held by Executive under the Stock Award Agreements with
Executive and Xxxxxxxxxxx Industries, Inc.
4. GROSS-UP ON EXCESS PARACHUTE PAYMENT.
(a) If any benefit or payment by the Company or its
subsidiaries to Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, including
any acceleration of vesting or payment) (a "Payment") is determined to 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, being herein
collectively referred to as the "Excise Tax"), then Executive shall be entitled
to receive an additional payment (the "Gross-Up Payment") in an amount such that
the net amount of such additional payment retained by Executive, after payment
of all federal, state and local income and employment taxes (including, without
limitation, any federal,
4
5
state, and local income and employment taxes and Excise Tax imposed on the
Gross-Up Payment), shall be equal to the Excise Tax imposed on the Payment.
Notwithstanding the foregoing provisions of this Section 4(a), if it shall be
determined that Executive is entitled to a Gross-Up Payment, but that the net
present value of the Payments (calculated at the discount rate in effect under
Code Section 280G) do not exceed 120% of the "Reduced Amount," then no Gross-Up
Payment shall be made to the Executive and the Payments, in the aggregate, shall
be reduced to the Reduced Amount. For purposes of this Section, the term
"Reduced Amount" shall mean the greatest amount that could be paid to the
Executive such that the receipt of Payments would not give rise to any Excise
Tax.
(b) Subject to the provisions of Section 4(c) hereto, 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 an independent accounting firm of nationally recognized standing selected by
the Company and which is not serving as accountant or auditor for the Company or
the individual, entity or group effecting the Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within 15 business days of the receipt of the notice from
Executive that there has been a Payment or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment shall be paid by the Company to Executive
within ten business 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 will not have been made by the
Company which should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 4(c) hereof 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 the amount of the
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 a Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten 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. 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
requested by the Company relating to such claim;
5
6
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time
to time, including 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 effectively to 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 federal, state and local income
and employment 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 Section 4(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 after-tax basis, and shall hold Executive harmless
from any Excise Tax or federal, state or local income or employment 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. The
Company's control of the contest, however, 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
by, 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 Section 4(c), Executive becomes entitled to receive
any refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of Section 4(c)) 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 an amount
advanced by the Company pursuant to Section 4(c), 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
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required
6
7
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.
(e) In the event that the Excise Tax is subsequently
determined to be less than initially determined by the Accounting Firm,
Executive shall repay to the Company at the time that the amount of such
reduction in Excise Tax is determined (but, if previously paid to the taxing
authorities, not prior to the time the amount of such reduction is refunded to
Executive or otherwise realized as a benefit by Executive) the portion of the
Gross-Up Payment that would not have been paid if the Excise Tax as subsequently
determined had been applied in initially calculating the Gross-Up Payment, with
the amount of such repayment determined by the Accounting Firm.
5. CONFIDENTIALITY; NON-COMPETITION.
(a) Executive shall not at any time without the prior approval
of the Company disclose to any person, firm, corporation or other entity any
trade secret, confidential customer information, or other proprietary
information not known within the industry or by the public generally regarding
the business then being conducted by the Company, including, without limitation,
financial information, marketing and sales information and business and
strategic plans.
(b) Executive shall not at any time during the term of this
Agreement and within three years following the termination of his employment
with the Company, (i) solicit any persons who are employed by the Company to
terminate their employment with the Company, and (ii) directly or indirectly
(either individually or as an agent, employee, director, officer, stockholder,
partner or individual proprietor, consultant or as an investor who has made
advances of loan capital or contributions to equity capital), engage in any
activity which he knows (or reasonably should have known) to be competitive with
the business of the Company as then being carried on. Nothing in this Agreement,
however, shall prevent Executive from owning, as an investment, up to two
percent (2%) of the outstanding equity capital of any competitor of the Company,
shares of which are regularly traded on a national securities exchange or in
over-the-counter markets. The restrictions set forth in this Section 5 shall not
apply in the event of a termination of Executive's employment pursuant to
Section 1.
6. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Annual Base Salary" means the annualized amount of
Executive's rate of base salary in effect immediately before the Change in
Control or immediately before the date of Termination, whichever is greater.
(b) "Cause" means
(i) embezzlement or material misappropriation of
funds or property of the Company,
7
8
(ii) the continued failure of Executive to perform
substantially the Executive's duties (as of the date hereof) with the
Company or one of its affiliates (other than any such failure resulting
from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to the Executive by the
Company which specifically identifies the manner in which the Company
believes that Executive has not substantially performed the Executive's
duties; or
(iii) the willful engaging by Executive in illegal
conduct or gross misconduct which is materially and demonstrably
injurious to the Company.
For purposes of this provision, no act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Company.
(c) A "Change in Control" shall be deemed to occur on:
(i) the date that both
(A) any person, corporation, partnership,
syndicate, trust, estate or other group acting with a view to the
acquisition, holding or disposition of securities of the Company,
becomes, directly or indirectly, the beneficial owner, as defined in
Rule 13d-3 under the Securities Exchange Act of 1934 ("Beneficial
Owner"), of securities of the Company representing 35% or more of the
voting power of all Company securities having the right under ordinary
circumstances to vote at an election of the Board ("Voting
Securities"), other than by reason of (x) the acquisition of Company
securities by the Company or any of its subsidiaries or any employee
benefit plan of the Company or any of its subsidiaries, (y) the
acquisition of Company securities directly from the Company, or (z) the
acquisition of Company securities by one or more members of the
Xxxxxxxxxxx Family (which term shall mean [descendants of Xxxx X.
Xxxxxxxxxxx and their spouses, trusts primarily for their benefit or
entities controlled by them]), and
(B) members of the Xxxxxxxxxxx Family cease
to be, directly or indirectly, the Beneficial Owners of Voting
Securities having a voting power equal to or greater than that of such
person, corporation, partnership, syndicate, trust, estate or group;
(ii) the consummation of a merger or
consolidation of the Company with another corporation unless
(A) the shareholders of the Company,
immediately prior to the merger or consolidation, beneficially own,
immediately after the merger or consolidation, shares entitling such
shareholders to 50% or more of the voting power of all securities of
the corporation surviving the merger or consolidation having the right
under ordinary circumstances to vote at an election of directors in
substantially the same proportions as their ownership, immediately
prior to such merger or consolidation, of Voting Securities of the
Company;
8
9
(B) no person, corporation, partnership,
syndicate, trust, estate or other group beneficially owns, directly or
indirectly, 35% or more of the voting power of the outstanding voting
securities of the corporation resulting from such merger or
consolidation except to the extent that such ownership existed prior to
such merger or consolidation; and
(C) the members of the Company's Board,
immediately prior to the merger or consolidation, constitute,
immediately after the merger or consolidation, a majority of the board
of directors of the corporation issuing cash or securities in the
merger;
(iii) the date on which a majority of the members of
the Board consist of persons other than Current Directors (which term
shall mean any member of the Board on the date hereof and any member
whose nomination or election has been approved by a majority of Current
Directors then on the Board);
(iv) the consummation of a sale or other
disposition of all or substantially all of the assets of the Company;
or
(v) the date of approval by the shareholders of
the Company of a plan of complete liquidation of the Company.
(d) "Good Reason" means any of the following events
occurring without the Executive's consent:
(i) the assignment to Executive of duties
substantially inconsistent with his position, duties, responsibilities
or status with the Company (as of the date hereof) or a substantial
reduction of the Executive's duties or responsibilities, which persists
for at least 30 days following written notice thereof by Executive;
provided that it is specifically understood that within six months of a
Change in Control the Company shall have the flexibility to appoint the
Executive to a reporting relationship different from that which existed
prior to the Change in Control, to make an immaterial change in
Executive's duties, or to change the Executive's title provided that
Executive shall not have a stature less than that of
_____________________________. It is understood that equivalent
positions may have different titles;
(ii) a failure by the Company to continue to provide
to Executive compensation and benefits (including bonus opportunities)
which in the aggregate are at least as great as the compensation and
benefits provided prior to the Change in Control;
(iii) the Company's requiring Executive to be based
at any office or location more than 100 miles from the location at
which he performs his service for the Company, except for travel
reasonably required in the performance of Executive's responsibilities,
or
9
10
(iv) any failure by the Company to perform its
obligations under Section 9 (b) hereof.
(e) "Pension Plan" means the Xxxxxxxxxxx Industries Pension
Plan of January 1, 1994 as amended from time to time.
(f) "Performance Share Compensation" means the Performance
Share Compensation payable under Article VI of the Senior Executive Program, or
any successor long-term incentive plan or program.
(g) "Perquisite Compensation" means the Perquisite
Compensation set forth in Article VII of the Senior Executive Program, or any
successor plan or program.
(h) "Senior Executive Program" means the Xxxxxxxxxxx
Industries Inc. Senior Executive Compensation Program, as it may be amended from
time to time.
(i) "Short-Term Incentive Compensation" means the Incentive
Compensation payable under Article V of the Senior Executive Program, or any
successor short-term incentive plan or program.
(j) "Split Dollar Life Insurance Program" shall mean a program
under which the Company assists the owner of an insurance policy - on the life
of Executive - in the payment of premiums for the policy, as evidenced by a
split dollar life insurance agreement between the owner and the Company.
(k) "Supplemental Pension Plan" means the Supplemental Pension
Plan provided under Article IX of the Senior Executive Program, or any successor
long-term supplemental pension plan or program.
7. NOTICE.
(a) Any discharge or termination of Executive's employment
pursuant to Section 1 shall be communicated in a written notice to the other
party hereto setting forth the effective date of such discharge or termination
(which date shall not be more than 30 days after the date such notice is
delivered) and, in the case of a discharge for Cause or a termination for Good
Reason the basis for such discharge or termination.
(b) For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to 000 Xxxxxxx 00 Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 provided that all
notices to the Company shall be directed to the attention of the Board with a
copy to the Vice President and General Counsel, or to such other address as
either party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon receipt.
10
11
8. NO DUTY TO MITIGATE. Executive is not required to seek other
employment or otherwise mitigate the amount of any payments to be made by the
Company pursuant to this Agreement.
9. ASSIGNMENT.
(a) This Agreement is personal to Executive and shall not be
assignable by Executive other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. The Company shall require any
successor to all or substantially all of the business and/or assets of the
Company, whether direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent as the Company would be
required to perform it if no such succession had taken place.
10. ARBITRATION. Any dispute or controversy arising under, related to
or in connection with this Agreement shall be settled exclusively by arbitration
before a single arbitrator in Indianapolis, Indiana, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
arbitrator's award shall be final and binding on all parties to this Agreement.
Judgment may be entered on an arbitrator's award in any court having competent
jurisdiction.
11. INTEGRATION. This Agreement supersedes and replaces any prior
oral or written agreements or understandings in respect of the matters addressed
hereby.
12. AMENDMENT. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
13. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
14. WITHHOLDING. The Company may withhold from any amounts
payable under this Agreement such federal, state, local or foreign taxes as
shall be required to be withheld pursuant to any applicable law or regulation.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of Indiana without reference
to principles of conflict of laws.
16. ATTORNEY'S FEES. If any legal proceeding (whether in
arbitration, at trial or on appeal) is brought under or in connection with this
Agreement, each party shall pay its own expenses, including attorneys' fees.
11
12
17. TERM OF AGREEMENT. The term of this Agreement shall be one (1) year
commencing on the date hereof; provided however, that this Agreement shall be
automatically renewed for successive one-year terms commencing on each
anniversary of the date of this Agreement unless the Company shall have given
notice of non-renewal to Executive at least 30 days prior to the scheduled
termination date; and further provided that notwithstanding the foregoing, this
Agreement shall not terminate (i) within three years after a Change in Control
or (ii) during any period of time when a transaction which would result in a
Change in Control is pending or under consideration by the Board. The
termination of this Agreement shall not adversely affect any rights to which
Executive has become entitled prior to such termination. In addition, Section
5(a) shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
XXXXXXXXXXX INDUSTRIES, INC.
By
----------------------------------
Title President and Chief Executive
Officer
--------------------------------------
Executive
12
