AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”), dated as of by
and between DIEBOLD, INCORPORATED, an Ohio corporation (the “Company”), and
(the “Executive”);
WITNESSETH:
WHEREAS, the Executive is a senior executive who has made and is expected to continue to make
major contributions to the profitability, growth and financial strength of the Company and its
Subsidiaries (as hereinafter defined);
WHEREAS, the Company recognizes that, as is the case for most publicly held companies, the
possibility of a Change in Control (as that term is hereafter defined) exists;
WHEREAS, the Company desires to assure itself and its Subsidiaries of both present and future
continuity of management in the event of a Change in Control and desires to establish certain
minimum compensation rights for key senior executive officers, including the Executive, applicable
in the event of a Change in Control;
WHEREAS, the Company wishes to ensure that senior executives are not practically disabled from
discharging their duties upon a Change in Control;
WHEREAS, this Agreement is not intended to alter materially the compensation and benefits
which the Executive could reasonably expect to receive absent a Change in Control and, accordingly,
although effective and binding as of the date hereof, this Agreement shall become operative only
upon the occurrence of a Change in Control; and
WHEREAS, the Executive is willing to render services on the terms and subject to the
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, the Company and the Executive agree as
follows:
1. Operation of Agreement: (a) This Agreement, which amends and restates the
Employment Agreement which was previously entered into between the Company and the Executive, shall
be effective and binding immediately upon its execution, but, anything in this Agreement to the
contrary notwithstanding, this Agreement shall not become operative unless and until there shall
have occurred a Change in Control. For purposes of this Agreement, a “Change in Control” shall
have occurred if at any time during the Term (as that term is hereafter defined) any of the
following events shall occur:
(i) The Company is merged or consolidated or reorganized into or with another
corporation or other legal person, and as a result of such merger, consolidation or
reorganization less than a majority of the combined voting power of the then-outstanding
securities of such corporation or person immediately after such transaction is held in the
aggregate by the holders of Voting Stock (as that term is hereafter defined) of the Company
immediately prior to such transaction;
(ii) The Company sells or otherwise transfers all or substantially all of its assets to
any other corporation or other legal person, and as a result of such sale or transfer less
than a majority of the combined voting power of the then-outstanding securities of such
corporation or person immediately after such sale or transfer is held in the aggregate by the
holders of Voting Stock of the Company immediately prior to such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”), disclosing that any person (as the term “person” is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial
owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities representing 20% or more of the
combined voting power of the then-outstanding securities entitled to vote generally in the
election of directors of the Company (“Voting Stock”);
(iv) The Company files a report or proxy statement with the Securities and Exchange
Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or
any successor schedule, form or report or item therein) that a change in control of the
Company has or may have occurred or will or may occur in the future pursuant to any
then-existing contract or transaction; or
(v) If during any period of two consecutive years, individuals who at the beginning of
any such period constitute the Directors of the Company cease for any reason to constitute at
least a majority thereof, unless the election, or the nomination for election by the Company’s
stockholders, of each Director of the Company first elected during such period was approved by
a vote of at least two-thirds of the Directors of the Company then still in office who were
Directors of the Company at the beginning of any such period.
Notwithstanding the foregoing provisions of Section 1(a)(iii) or 1(a)(iv) hereof, a “Change in
Control” shall not be deemed to have occurred for purposes of this Agreement either (i) solely
because (A) the Company, (B) a Subsidiary of the Company, or (C) any Company-sponsored employee
stock ownership plan or any other employee benefit plan of the Company, either files or becomes
obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under
the Exchange Act, disclosing beneficial ownership by it of shares of Voting Stock, whether in
excess of 20% or otherwise, or because the Company reports that a change in control of the Company
has or may have occurred or will or may occur in the future by reason of such beneficial ownership
or (ii) solely because of a change in control of any Subsidiary by which the Executive may be
employed. Notwithstanding the foregoing provisions of Sections 1(a)(i-iv) hereof, if, prior to any
event described in Sections 1(a)(i-iv) hereof instituted by any person not an officer or director
of the Company, or prior to any disclosed proposal instituted by any person not an officer or
director of the Company which could lead to any such event, management proposes any restructuring
of the Company which ultimately leads to an event described in Sections 1(a)(i-iv) hereof pursuant
to such management proposal, then a “Change in Control” shall not be deemed to have occurred for
purposes of this Agreement.
(b) Upon the occurrence of a Change in Control at any time during the Term, this Agreement
shall become immediately operative, except that in the event that any such agreement to merge,
consolidate, reorganize or sell or otherwise transfer assets referred to in Section 1(a)(i) or
1(a)(ii) is terminated without such merger, consolidation, reorganization or sale or transfer
having been consummated, or the person filing such Schedule 13D or Schedule 14D-1 referred to in
Section 1(a)(iii) files an amendment to such Schedules disclosing that it no longer is the
beneficial owner of securities representing 20% or more of the Voting Stock of the Company, or the
Company reports that the change of control which it reported in the filing referred to in Section
1(a)(iv) will not in fact occur, the Board of Directors of the Company (the “Board”) may by notice
to the Executive nullify the operation of this Agreement by reason of such Change in Control,
without prejudice to any exercise by the Executive of his rights under this Agreement that may have
occurred prior to such nullification.
(c) The period during which this Agreement shall be in effect (the “Term”) shall commence as
of the date hereof and shall expire as of the later of (i) the close of business on December 31,
2011 and (ii) the expiration of the Period of Employment (as that term is hereafter defined),
provided, however, that (A) commencing on January 1, 2009 and each January 1 thereafter, the term
of this Agreement shall automatically be extended for an additional year unless, not later than
September 30 of the immediately preceding year, the Company or the Executive shall have given
notice that it or he, as the case may be, does not wish to have the Term extended, and (B) subject
to Section 8 hereof, if, at any time prior to a Change in Control, the Executive for any reason is
no longer an employee of the Company or a Subsidiary, thereupon the Term shall be deemed to have
expired and this Agreement shall immediately terminate and be of no further effect.
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2. Employment; Period of Employment: (a) Subject to the terms and conditions of this
Agreement, upon the occurrence of a Change in Control, the Company shall continue the Executive in
the employ of the Company and its Subsidiaries and the Executive shall remain in such employ for
the period set forth in Section 2(b) hereof (the “Period of Employment”). During the Period of
Employment, the Executive agrees to serve in such office or offices of the Company or any
Subsidiary to which the Board or the managing authority of any Subsidiary may from time to time
elect or appoint him. Throughout the Period of Employment, the Executive shall devote
substantially all of his time during normal business hours (subject to vacations, sick leave and
other absences in accordance with the policies of the Company and its Subsidiaries as in effect for
senior executives immediately prior to the Change in Control) to the business and affairs of the
Company and its Subsidiaries, but nothing in this Agreement shall preclude the Executive from
devoting reasonable periods of time during normal business hours to (i) serving as a director,
trustee or member of or participant in any organization or business so long as such activity would
not constitute Competitive Activity (as that term is hereafter defined), (ii) engaging in
charitable and community activities, or (iii) managing his personal investments.
(b) The Period of Employment shall commence on the date of an occurrence of a Change in
Control and, subject only to the provisions of Section 4 hereof, shall continue until the earlier
of (i) the expiration of the third anniversary of the occurrence of the Change in Control, (ii) the
Executive’s death, or (iii) the Executive’s attainment of age 65; provided, however, that
commencing on each anniversary of the Change in Control, the Period of Employment shall
automatically be extended for an additional year unless, not later than 90 calendar days prior to
such anniversary date, either the Company or the Executive shall have given written notice to the
other that the Period of Employment shall not be so extended.
(c) As used in this Agreement, the term “Subsidiary” means a corporation, company or other
entity (i) more than 50 percent of whose outstanding shares or securities (representing the right
to vote for the election of directors or other managing authority) are, or (ii) which does not have
outstanding shares or securities (as may be the case in a partnership, joint venture or
unincorporated association), but more than 50 percent of whose ownership interest representing the
right generally to make decisions for such other entity is, now or hereafter, owned or controlled,
directly or indirectly, by the Company, but such corporation, company or other entity shall be
deemed to be a Subsidiary only so long as such ownership or control exists.
3. Compensation During Period of Employment: (a) For his services pursuant to
Section 2(a) hereof, upon the occurrence of a Change in Control, the Executive shall receive during
the Period of Employment (i) annual base salary at a rate not less than the Executive’s annual
fixed or base compensation (payable monthly or otherwise as in effect for senior executives of the
Company immediately prior to the occurrence of a Change in Control) or such higher rate as may be
approved from time to time by the Board or the Compensation Committee thereof (the “Committee”)
(which base salary at such rate is herein referred to as “Base Pay”) and (ii) an annual amount
equal to not less than the highest aggregate annual bonus, incentive or other payments of cash
compensation in addition to the amounts referred to in clause (i) above made or to be made in
regard to services rendered in any calendar year during the three calendar years immediately
preceding the year in which the Change in Control occurred pursuant to any bonus, incentive,
profit-sharing, performance, discretionary pay or similar policy, plan, program or arrangement of
the Company or any Subsidiary or any successor thereto providing benefits at least as great as the
benefits payable thereunder prior to a Change in Control (“Incentive Pay”), provided, however, that
with the prior written consent of the Executive, nothing herein shall preclude a change in the mix
between Base Pay and Incentive Pay so long as the aggregate cash compensation received by the
Executive in any one calendar year is not reduced in connection therewith or as a result thereof,
and provided further, however, that in no event shall any increase in the Executive’s aggregate
cash compensation or any portion thereof in any way diminish any other obligation of the Company
under this Agreement.
(b) For his services pursuant to Section 2(a) hereof, during the Period of Employment the
Executive shall be a full participant in, and shall be entitled to the perquisites, benefits and
service credit for benefits as provided under, any and all employee retirement income and welfare
benefit policies, plans, programs or arrangements in which senior executives of the Company or its
Subsidiaries participate, including without limitation any stock option, stock purchase, stock
appreciation, restricted stock grant, savings, pension, supplemental executive retirement or other
retirement income or welfare benefit, deferred compensation, group and/or executive life, health,
medical/hospital or other insurance (whether funded by actual insurance or self-insured by the
Company or any Subsidiary), disability, salary continuation, expense
reimbursement and
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other employee benefit policies, plans, programs or arrangements that may now exist or any
equivalent successor policies, plans, programs or arrangements that may be adopted hereafter by the
Company or any Subsidiary providing perquisites, benefits and service credit for benefits at least
as great as are payable thereunder prior to a Change in Control (collectively, “Employee
Benefits”), provided, however, that except as expressly provided in, and subject to the terms of,
Section 5(a)(ii) hereof, the Executive’s rights thereunder shall be governed by the terms thereof
and shall not be enlarged hereunder or otherwise affected hereby. Subject to the proviso in the
immediately preceding sentence, if and to the extent such perquisites, benefits or service credit
for benefits are not payable or provided under any such policy, plan, program or arrangement as a
result of the amendment or termination thereof, then the Company shall itself pay or provide
therefor. Nothing in this Agreement shall preclude improvement or enhancement of any such Employee
Benefits, provided that no such improvement shall in any way diminish any other obligation of the
Company under this Agreement.
(c) (i) The Company has determined that the amounts payable pursuant to this Section 3
constitute reasonable compensation for services to be rendered during the Period of Employment.
Accordingly, notwithstanding any other provision hereof, unless such action would be expressly
prohibited by applicable law, if any amount paid or payable pursuant to this Section 3 for
services to be rendered during the Period of Employment, or pursuant to Section 5, or pursuant
to or by reason of any other agreement, policy, plan, program or arrangement (collectively
“Other Agreements”) is subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”), the Company will pay to the Executive an additional
amount in cash equal to the amount necessary to cause the aggregate remuneration received by the
Executive under this Section 3 for services to be rendered during the Period of Employment, or
Section 5, or the Other Agreements, including such additional cash payment (net of all federal,
state and local income taxes and all taxes payable as the result of the application of Sections
280G and 4999 of the Code) to be equal to the aggregate remuneration the Executive would have
received under this Section 3 for services to be rendered during the Period of Employment, or
Section 5, or the Other Agreements, excluding such additional payment (net of all federal, state
and local income taxes), as if Sections 280G and 4999 of the Code (and any successor provisions
thereto) had not been enacted into law.
(ii) Notwithstanding any other provision of this Section 3(c) to the contrary and subject
to the first paragraph of Section 5(a), the payments described in Section 3(c)(i) shall be paid
or reimbursed within five business days after the Executive submits evidence of incurrence of
such taxes and/or expenses, provided that in all events such reimbursement will be made no later
than the end of the year following the year in which the applicable taxes are remitted or, in
the case of reimbursement of expenses incurred due to a tax audit or litigation to which there
is no remittance of taxes, no later than the end of the year following the year in which the
audit is completed or there is a final and nonappealable settlement or other resolution of the
litigation in accordance with Treasury Regulation Section 1.409A-3(i)(1)(v). Each provision of
reimbursements pursuant to this Section 3(c) shall be considered a separate payment and not one
of a series of payments for purposes of Section 409A of the Code. Any expense reimbursed by the
Company in one taxable year in no event will affect the amount of expenses required to be
reimbursed or in-kind benefits required to be provided by the Company in any other taxable year.
4. Termination Following a Change in Control: (a) In the event of the occurrence of
a Change in Control, the Executive’s employment with the Company and its Subsidiaries may be
terminated by the Company and its Subsidiaries during the Period of Employment and the Executive
shall not be entitled to the benefits provided by Section 5 hereof only upon the occurrence of one
or more of the following events:
(i) The Executive’s death;
(ii) If the Executive shall become permanently disabled within the meaning of, and
begins actually to receive disability benefits pursuant to, the long-term disability plan in
effect for senior executives of the Company and its Subsidiaries immediately prior to the
Change in Control; or
(iii) For “Cause,” which for purposes of this Agreement shall mean that, prior to any
termination pursuant to Section 4(b) hereof, the Executive shall have committed:
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(A) an intentional act of fraud, embezzlement or theft in connection with his duties
or in the course of his employment with the Company or any Subsidiary;
(B) intentional wrongful damage to property of the Company or any Subsidiary;
(C) intentional wrongful disclosure of secret processes or confidential information
of the Company or any Subsidiary; or
(D) intentional wrongful engagement in any competitive activity which would
constitute a material breach of the duty of loyalty (“Competitive Activity”);
and any such act shall have been materially harmful to the Company and its Subsidiaries taken
as a whole. For purposes of this Agreement, no act, or failure to act, on the part of the
Executive shall be deemed “intentional” if it was due primarily to an error in judgment or
negligence, but shall be deemed “intentional” only if done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that his action or omission was in or not opposed
to the best interest of the Company and its Subsidiaries. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for “Cause” hereunder unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the Board then in office at a meeting of the Board called
and held for such purpose (after reasonable notice to the Executive and an opportunity for the
Executive, together with his counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, the Executive had committed an act set forth above in this Section
4(a)(iii) and specifying the particulars thereof in detail. Nothing herein shall limit the right
of the Executive or his beneficiaries to contest the validity or propriety of any such
determination.
(b) In the event of the occurrence of a Change in Control, during the Period of Employment
the Executive shall be entitled to the benefits as provided in Section 5 hereof upon the occurrence
of one or more of the following events:
(i) Any termination by the Company and its Subsidiaries of the employment of the
Executive prior to the date upon which the Executive shall have attained age 65, which
termination shall be for any reason other than for Cause or as a result of the death of the
Executive or by reason of the Executive’s disability and the actual receipt of disability
benefits in accordance with Section 4(a)(ii) hereof; or
(ii) Termination by the Executive of his employment with the Company and its
Subsidiaries during the Period of Employment after the Change in Control upon the occurrence
of any of the following events:
(A) Failure to elect, reelect or otherwise maintain the Executive in the offices or
positions in the Company or any Subsidiary which the Executive held immediately prior to
a Change in Control, or the removal of the Executive as a Director of the Company (or any
successor thereto) if the Executive shall have been a Director of the Company immediately
prior to the Change in Control, or the removal of the Executive as a member of the
managing authority of any Subsidiary if the Executive shall have been a member of such
body immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers,
functions, responsibilities or duties attached to the position or positions with the
Company and its Subsidiaries which the Executive held immediately prior to the Change in
Control, a reduction in the aggregate of the Executive’s Base Pay and Incentive Pay
received from the Company and its Subsidiaries, or the termination of the Executive’s
rights to any Employee Benefits to which he was entitled immediately prior to the Change
in Control or a reduction in scope or value thereof without the prior written consent of
the Executive, any of which is not remedied within 10 calendar days after receipt by the
Company of written notice from the Executive of such change, reduction or termination, as
the case may be;
(C) A determination by the Executive made in good faith that as a result of a
Change in Control and a change in circumstances thereafter significantly affecting his
position, including without limitation a change in the scope of the business or other
activities for which he was responsible immediately prior to the
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Change in Control, he has been rendered substantially unable to carry out, has been
substantially hindered in the performance of, or has suffered a substantial reduction in,
any of the authorities, powers, functions, responsibilities or duties attached to the
position held by the Executive immediately prior to the Change in Control, which
situation is not remedied within 10 calendar days after written notice to the Company
from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the
Company or transfer of all or a significant portion of its business and/or assets, unless
the successor or successors (by liquidation, merger, consolidation, reorganization or
otherwise) to which all or a significant portion of its business and/or assets have been
transferred (directly or by operation of law) shall have assumed all duties and
obligations of the Company under this Agreement pursuant to Section 10 hereof;
(E) The Company shall relocate its principal executive offices, or the Company or
any Subsidiary shall require the Executive to have his principal location of work
changed, to any location which is in excess of 25 miles from the location thereof
immediately prior to the Change in Control or the Company or any Subsidiary shall require
the Executive to travel away from his office in the course of discharging his
responsibilities or duties hereunder significantly more (in terms of either consecutive
days or aggregate days in any calendar year) than was required of him prior to the Change
in Control without, in either case, his prior written consent; or
(F) Without limiting the generality or effect of the foregoing, any material breach
of this Agreement by the Company or any successor thereto.
(c) A termination by the Company and its Subsidiaries pursuant to Section 4(a) hereof or by
the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may
have pursuant to any agreement, policy, plan, program or arrangement of the Company or any
Subsidiary providing Employee Benefits, which rights shall be governed by the terms thereof. If
this Agreement or the employment of the Executive is terminated under circumstances in which the
Executive is not entitled to any payments under Section 3 or 5 hereof, the Executive shall have no
further obligation or liability to the Company hereunder with respect to his prior or any future
employment.
5. Severance Compensation: (a) If, following the occurrence of a Change in Control,
the Company and its Subsidiaries shall terminate the Executive’s employment during the Period of
Employment other than pursuant to Section 4(a) hereof, or if the Executive shall terminate his
employment pursuant to Section 4(b) hereof, the Company shall pay to the Executive the amount
specified in Section 5(a)(i) hereof within five business days after the Termination Date (as that
term is defined in Section 5(b)); provided, however, if the Executive is a “specified employee”
(within the meaning of Treasury Regulation Section 1.409A-1(i) and using the identification
methodology selected by the Company from time to time), then amounts that otherwise would be
payable pursuant to Sections 3(c), 5(a), 5(e) and 7(a) of this Agreement (as well as any other
payment or benefit that the Executive is entitled to receive upon his separation from service and
that would be considered to be deferred compensation under Section 409A of the Code) during the
six-month period immediately following the Termination Date will instead be paid or made available
on the earlier of the first day of the seventh month following the Executive’s Termination Date and
the Executive’s death:
(i) In lieu of any further payments to the Executive for periods subsequent to the
Termination Date, but without affecting the rights of the Executive referred to in Section
5(b) hereof, a lump sum payment (the “Severance Payment”) in an amount equal to two times the
Base Pay of the Executive.
(ii) Commencing the Termination Date and continuing until the earlier of (i) the
expiration of the first anniversary of the Termination Date, (ii) the Executive’s death, or
(iii) the Executive’s attainment of age 65 (the “Benefits Period”), the Company shall continue
to provide the Executive with medical, dental, vision, and prescription drug benefits
(collectively “health benefits”) and life insurance benefits substantially similar to those
which the Executive was receiving or entitled to receive immediately prior to the Termination
Date (and if and to the extent that such benefits shall not or cannot be paid or provided
under any policy, plan, program or arrangement of the Company or its Subsidiaries solely due
to the fact that the Executive is no longer an officer or employee of the Company and its
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Subsidiaries, then the Company shall itself pay or provide for the payment to the Executive,
his dependents and beneficiaries, such health benefits and life insurance benefits). The
Executive shall pay the cost, on an after-tax basis, for the continued health benefit
coverage, on or about January 31 of the year following the year in which the Termination Date
occurs and continuing on or about each January 31 until the year following the last year of
the Benefits Period, and, subject to the first paragraph of this Section 5(a), concurrently
therewith the Company will make a payment to the Executive such that, after payment of all
taxes incurred by the Executive as a result of the Executive’s receipt of the continued health
benefit coverage and payment by the Company, the Executive retains an amount equal to the
amount the Executive paid during the immediately preceding calendar year for the health
benefit coverage described in this Section. Without otherwise limiting the purposes or
effect of Section 6 hereof, benefits payable to the Executive pursuant to this Section
5(a)(ii) by reason of any “welfare benefit plan” of the Company (as the term “welfare benefit
plan” is defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as
amended) shall be reduced to the extent comparable welfare benefits are actually received by
the Executive from another employer during the Benefits Period.
(b) For purposes of this Agreement, “Termination Date” means the date on with the Executive
incurs a “separation from service” within the meaning of Section 409A of the Code. Each payment to
be made to the Executive under the provisions of this Agreement will be considered to be a separate
payment and not one of a series of payments for purposes of Section 409A of the Code.
(c) There shall be no right of set-off or counterclaim in respect of any claim, debt or
obligation against any payment to or benefit for the Executive provided for in this Agreement.
(d) Without limiting the rights of the Executive at law or in equity, if the Company fails to
make any payment required to be made hereunder on a timely basis, the Company shall pay interest on
the amount thereof at an annualized rate of interest equal to twelve percent (12%).
(e) Subject to the first paragraph of Section 5(a), the Company will pay the Executive a lump
sum payment in an amount equal to the additional benefits that the Executive would have accrued
under each qualified or nonqualified pension, profit sharing, deferred compensation or supplemental
plan maintained by the Company for the Executive’s benefit had the Executive continued his
employment with the Company for one additional year following his Termination Date assuming the
Executive was fully vested under such plans.
6. No Mitigation Obligation: The Company hereby acknowledges that it will be
difficult, and may be impossible, for the Executive to find reasonably comparable employment
following the Termination Date. In addition, the Company acknowledges that its severance pay plans
applicable in general to its salaried employees do not provide for mitigation, offset or reduction
of any severance payment received thereunder. Accordingly, the parties hereto expressly agree that
the payment of the severance compensation by the Company to the Executive in accordance with the
terms of this Agreement will be liquidated damages, and that the Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking other employment or
otherwise, nor shall any profits, income, earnings or other benefits from any source whatsoever
create any mitigation, offset, reduction or any other obligation on the part of the Executive
hereunder or otherwise.
7. Indemnification of Legal Fees and Expenses; Security for Payment: (a)
Indemnification of Legal Fees. It is the intent of the Company that the Executive not be
required to incur the expenses associated with the enforcement of his rights under this Agreement
by litigation or other legal action because the cost and expense thereof would substantially
detract from the benefits intended to be extended to the Executive hereunder. Accordingly, if it
should appear to the Executive that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any litigation designed to deny, or to
recover from, the Executive the benefits intended to be provided to the Executive hereunder, the
Company irrevocably authorizes the Executive from time to time to retain counsel of his choice, at
the expense of the Company as hereafter provided, to represent the Executive in connection with the
initiation or defense of any litigation or other legal action, whether by or against the Company or
any Subsidiary, Director, officer, stockholder or other person affiliated with the Company, in any
jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the
Company and
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such counsel, the Company irrevocably consents to the Executive’s entering into an attorney-client
relationship with such counsel, and in that connection the Company and the Executive agree that a
confidential relationship shall exist between the Executive and such counsel. The Company shall
pay or cause to be paid and shall be solely responsible for any and all attorneys’ and related fees
and expenses incurred by the Executive as a result of the Company’s failure to perform this
Agreement or any provision hereof or as a result of the Company or any person contesting the
validity or enforceability of this Agreement or any provision hereof as aforesaid, provided any
such reimbursement of attorneys’ and related fees and expenses shall be made not later than
December 31 of the year following the year in which the Executive incurred the expense. In no
event will the amount of expenses so reimbursed by the Company in one year affect the amount of
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(b) Trust Agreements. To ensure that the provisions of this Agreement can be
enforced by the Executive, two agreements (“Trust Agreement” and “Trust Agreement No. 2”) dated as
of February 10, 1989, have been established between National City Bank, a national banking
association (“Trustee”) and the Company. The Trust Agreement sets forth the terms and conditions
relating to payment from the Trust Agreement of the Severance Payment and other Employee Benefits
pursuant to Section 5(a) hereof owed by the Company, and Trust Agreement No. 2 sets forth the terms
and conditions relating to payment from Trust Agreement No. 2 of attorneys’ and related fees and
expenses pursuant to Section 7(a) hereof owed by the Company. Executive shall make demand on the
Company for any payments due Executive pursuant to Section 7(a) hereof prior to making demand
therefor on the Trustee under Trust Agreement No. 2. Payments by such Trustee shall discharge the
Company’s liability under Section 7(a) hereof only to the extent that trust assets are used to
satisfy such liability.
(c) Obligation of the Company to Fund Trusts. Upon the earlier to occur of (X) a
Change in Control that involves a transaction that was not approved by the Board, and was not
recommended to the Company’s shareholders by the Board, (Y) a declaration by the Board that the
Trusts should be funded in connection with a Change in Control that involves a transaction that was
approved by the Board, or was recommended to shareholders by the Board, or (Z) a declaration by the
Board that a Change in Control is imminent, the Company shall promptly, to the extent it
has not previously done so and to the extent the amount contributed would not be treated as
property transferred in connection with the performances of services for purposes of Code Section
83, as provided in Section 409A(b)(3) of the Code, and in any event within five (5) business days:
(i) transfer to the Trustee to be added to the principal of the trust under the Trust
Agreement a sum equal to the aggregate value on the date of the Change in Control of the
Severance Payment and Employee Benefits which could become payable to Executive under the
provisions of Section 5(a)(i) and Section 5(a)(ii) hereof; provided, however, that the Company
shall not be required to transfer, in the aggregate, to the trust under the Trust Agreement a
sum in excess of the maximum amount authorized by its Board by resolutions on February 10,
1989, which resolutions contemplate the funding of the trust under the Trust Agreement. Any
Severance Payment or other payment of Employee Benefits by the Trustee pursuant to the Trust
Agreement shall, to the extent thereof, discharge the Company’s obligation to pay the
Severance Payment and other Employee Benefits hereunder, it being the intent of the Company
that assets in such Trust be held as security for the Company’s obligation to pay the
Severance Payment and other Employee Benefits under this Agreement; and
(ii) transfer to the Trustee to be added to the principal of the trust under Trust
Agreement No. 2 the sum of Two Million Dollars ($2,000,000). Any payments of attorneys’ and
related fees and expenses, which are the obligation of the Company under Section 7(a) hereof,
by the Trustee pursuant to Trust Agreement No. 2 shall, to the extent thereof, discharge the
Company’s obligation hereunder, it being the intent of the Company that such assets in such
Trust be held as security for the Company’s obligation under Section 7(a) hereof.
8. Employment Rights: Nothing expressed or implied in this Agreement shall create any
right or duty on the part of the Company or the Executive to have the Executive remain in the
employment of the Company or any Subsidiary prior to any Change in Control, provided, however, that
any termination of employment of the Executive or the removal of the Executive from such
Executive’s office or position following the commencement of any discussion with a third person
that ultimately results in a Change in Control shall be deemed to be a termination or removal of
the Executive after a Change in Control for purposes of this Agreement.
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9. Withholding of Taxes: The Company may withhold from any amounts payable under this
Agreement all federal, state, city or other taxes as shall be required pursuant to any law or
government regulation or ruling.
10. Successors and Binding Agreement: (a) The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent the Company would be required to perform if no such
succession had taken place. This Agreement shall be binding upon and inure to the benefit of the
Company and any successor to the Company, including without limitation any persons acquiring
directly or indirectly all or substantially all of the business and/or assets of the Company
whether by purchase, merger, consolidation, reorganization or otherwise (and such successor shall
thereafter be deemed the “Company” for the purposes of this Agreement), but shall not otherwise be
assignable, transferable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributees
and/or legatees.
(c) This Agreement is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign, transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Section 10(a) hereof. Without limiting the generality of
the foregoing, the Executive’s right to receive payments hereunder shall not be assignable,
transferable or delegable, whether by pledge, creation of a security interest or otherwise, other
than by a transfer by his will or by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 10(c), the Company shall have no
liability to pay any amount so attempted to be assigned, transferred or delegated.
(d) The Company and the Executive recognize that each party will have no adequate remedy at
law for breach by the other of any of the agreements contained herein and, in the event of any such
breach, the Company and the Executive hereby agree and consent that the other shall be entitled to
a decree of specific performance, mandamus or other appropriate remedy to enforce performance of
this Agreement.
11. Notice: For all purposes of this Agreement, all communications including without
limitation notices, consents, requests or approvals, provided for herein shall be in writing and
shall be deemed to have been duly given when delivered or five business days after having been
mailed by United States registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company (to the attention of the Secretary of the Company) at its principal
executive office and to the Executive at his principal residence, or to such other address as any
party may have furnished to the other in writing and in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
12. Governing Law: The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Ohio, without giving effect to the
principles of conflict of laws of such State.
13. Validity: If any provision of this Agreement or the application of any provision
hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other person or
circumstances shall not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
14. Entire Agreement: This Agreement represents the entire agreement between the
parties relating to the subject matter hereof and replaces any and all prior agreements pertaining
thereto. No agreements or representations, oral or otherwise, expressed or implied with respect to
the subject matter hereof have been made by either party which are not set forth expressly in this
Agreement.
15. Amendment: No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by the Executive and
the Company. No waiver by either party hereto
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at any time of any breach by the other party hereto
or compliance with any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
16. Counterparts: This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together will constitute one and the
same agreement.
17. Code Section 409A Compliance: To the extent applicable, it is intended that this
Agreement comply with the provisions of Section 409A of the Code. This Agreement will be
administered in a manner consistent with this intent. References to Section 409A of the Code will
include any proposed, temporary or final regulation, or any other formal guidance, promulgated with
respect to such section by the U.S. Department of Treasury or the Internal Revenue Service.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the date first above written.
| XXXXXXX, INCORPORATED |
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| By | ||||
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