Contract
Exhibit
Exhibit 10.8
Exhibit 10.8
BRUNSWICK
CORPORATION
These
TERMS AND CONDITIONS OF EMPLOYMENT (the “Agreement”) made in Lake County,
Illinois, as of June 1, 2009 (the “Effective Date”), between Brunswick
Corporation, a Delaware corporation with its headquarters at 0 X. Xxxxx Xxxxx,
Xxxx Xxxxxx, Xxxxxxxx, 00000 (the “Company”), and [ ] (the
“Executive”).
WITNESSETH:
2. Employment and
Duties.
(c) [Reserved]
(e) [Reserved]
(g) [Reserved]
(j) [Reserved]
(a) Noncompetition;
Nonsolicitation; Nondisparagement. The following provisions
shall apply:
(i) During
the Executive’s employment and during the eighteen (18) month period immediately
following termination of Executive’s employment (regardless of the reason for
the termination of employment), without the prior written consent of the
Company, (i) the Executive shall not directly or indirectly be employed or
retained by, or render any services for, or be financially interested in any
manner, in any person, firm or corporation engaged in any business which is then
materially competitive in any way with any business in which the Company or any
Related Company was engaged (including any program of development or research)
(a “Competitive Activity”) during the Executive’s employment; (ii) the
Executive shall not divert or attempt to divert any business from the Company or
a Related Company; (iii) the Executive shall not disturb or attempt to
disturb any business relationships of the Company or any Related Company; and
(iv) the Executive shall not assist any person in any way to do, or attempt
to do, anything prohibited by the preceding clauses (i), (ii) and
(iii).
(ii) In
furtherance of Section 5(a)(i) above, the Executive shall promptly notify the
Company through the Company’s Chairman of the Board and Chief Executive Officer
and the Chief Human Resources Officer (or their respective representatives), in
advance in writing (which shall include a description of the proposed activity)
of [his/her] intention to engage in any activity which could reasonably be
deemed to be subject to the noncompetition provision set forth in Section
5(a)(i). The Company’s Chairman of the Board and Chief Executive
Officer or the Chief Human Resources Officer (or one of their respective
representatives) shall respond to the Executive in writing within thirty (30)
calendar days indicating its approval or objections to the Executive’s
engagement in the activity; provided, however, that if the Company’s Chairman of
the Board and Chief Executive Officer or the Chief Human Resources Officer (or
one of their respective representatives) does not respond to or request
additional information from the Executive within such thirty (30) day period,
the Company’s approval shall be deemed to be granted. If the
Executive fails to notify the Company of [his/her] intended activity in advance,
the Company shall retain all its rights of objections. Nothing in
this Agreement shall be construed as preventing the Executive from investing
[his/her] personal assets in any business that competes with the Company, in
such form or manner as will not require any services on the part of the
Executive in the operation or affairs of the business in which such investments
are made, but only if the Executive does not own or control more than two
percent of any class of the outstanding stock of such business.
(iii) For the
[(#)] month period following termination of Executive’s employment with the
Company, the Executive shall not, without the prior written consent of the
Company, (A) solicit, recruit or hire any individual who is employed by the
Company or any Related Company (or was so employed within 180 calendar days
prior to the Executive’s solicitation, recruitment or hiring), (B) solicit
or encourage any employee of the Company or any Related Company to terminate or
refrain from renewing or extending such employment or to become employed by or
become a consultant to any other individual or entity other than the Company or
a Related Company, or (C) initiate discussion with any such employee for
any such purposes or authorize or knowingly cooperate with the taking of any
such actions by any other individual or entity; provided, however, that nothing
herein shall prohibit the Executive from generally advertising for personnel not
specifically targeting any executive or other personnel of the
Company.
(b) Confidentiality. The
following provisions shall apply:
(i) Except as
may be required by the lawful order of a court or agency of competent
jurisdiction, or except to the extent that the Executive has express written
authorization from the Company, [he/she] will keep secret and confidential all
Confidential Information (as defined below), and not disclose the same, either
directly or indirectly, to any other person, firm, or business entity, or use it
in any way. The Executive agrees that, to the extent that any court
or agency seeks to have the Executive disclose Confidential Information,
[he/she] shall promptly inform the Company, and [he/she] shall take such
reasonable steps to prevent disclosure of Confidential Information until the
Company has been informed of such required disclosure, and the Company has an
opportunity to respond to such court or agency. To the extent that
the Executive obtains information on behalf of the Company or a Related Company
that may be subject to attorney-client privilege as to the Company or an
affiliate’s attorneys, the Executive shall take reasonable steps to maintain the
confidentiality of such information and to preserve such privilege.
(ii) Upon
[his/her] termination of employment with the Company for any reason, the
Executive shall promptly return to the Company any keys, credit cards, passes,
confidential documents and material, or other property belonging to the Company,
and shall return all writings, files, records, correspondence, notebooks, notes
and other documents and things (including any copies or electronic versions
thereof) containing Confidential Information or relating to the business or
proposed business of the Company or any Related Company or containing any trade
secrets relating to the Company or any Related Company, except any personal
diaries, calendars, rolodexes or personal notes or correspondence.
(c) Assistance with
Claims. The Executive agrees that, consistent with the
Executive’s business and personal affairs, during and after [his/her] employment
by the Company, [he/she] will assist the Company and any Related Company in the
defense of any claims or potential claims that may be made or threatened to be
made against any of them in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a “Proceeding”), and will assist the
Company and any Related Company in the prosecution of any claims that may be
made by the Company or any Related Company in any Proceeding, to the extent that
such claims may relate to the Executive’s employment or the period of the
Executive’s employment by the Company. Executive agrees, unless
precluded by law, to promptly inform the Company if Executive is asked to
participate (or otherwise become involved) in any Proceeding involving such
claims or potential claims. Executive also agrees, unless precluded
by law, to promptly inform the Company if Executive is asked to assist in any
investigation (whether governmental or private) of the Company or any Related
Company (or their actions), regardless of whether a lawsuit has then been filed
against the Company or any Related Company with respect to such
investigation. The Company agrees to reimburse Executive for all of
Executive’s reasonable out-of-pocket expenses associated with such assistance,
including travel expenses and any attorneys’ fees and shall pay a reasonable per
diem fee for Executive’s service.
(e) Remedies.
(i) The
Executive acknowledges that the Company would be irreparably injured by any
violation of this Section 5.
(ii) Subject
to Section 7, in the event of any material breach by the Executive of the
provisions of Sections 5(a) or (b), (A) the Company shall be relieved of all
obligations to make any further payments to the Executive pursuant to Sections 4
and 6 of this Agreement or otherwise under any incentive compensation plan of
the Company or a Related Company, (B) all outstanding equity-based awards
held by the Executive shall be immediately forfeited, (C) subject to the
following provisos, the Executive will be required to pay to the Company, in
cash, within five business days after written demand is made therefor by the
Company, an amount equal to any payments received by the Executive under
Sections 6(a), 6(b) and 6(f) and (D) subject to the following provisos, the
Executive will be required to pay the Company, in cash, within five (5) business
days after written demand is made therefor by the Company, an amount equal to
any gain realized as a result of the exercise or vesting of equity awards during
the period commencing twelve months prior to the Executive’s termination of
employment for any reason and ending on the date of payment; provided, however, that no
forfeiture, cancellation, or repayment shall take place with respect to any
payments, benefits, or entitlements under this Agreement or any other award
agreement, plan, or practice, unless the Company shall have first given the
Executive written notice of its intent to so forfeit, cancel, or require
repayment and the Executive has not, within thirty (30) calendar days after such
notice has been given, ceased such impermissible Competitive Activity or other
activity in violation of this Agreement; and provided further,
however, that
such prior notice procedure shall not be required with respect to (A) a
Competitive Activity or violation of Section 5(b) of this Agreement which the
Executive initiated after the Company had informed the Executive in writing that
it believed such activity violated this Agreement or the Company’s
noncompetition guidelines, or (B) any Competitive Activity regarding
products or services which are part of a line of business which the Executive
knew or should have known represented more than five percent (5%) of the
Company’s consolidated gross revenues for its most recently completed fiscal
year at the time the Executive’s employment is terminated.
(a) Severance
Benefits. Prior to a Change in Control, if the Company
terminates the Executive’s employment for any reason other than Long-Term
Disability or Cause, or if the Executive resigns for Good Reason, subject to
Section 6(h), the Executive shall be entitled to:
(i) Severance
payments in an aggregate amount equal to the sum of (x) one and one-half (1.5)
times Executive’s then-current Base Salary (disregarding any reduction in salary
made in contemplation of such termination of employment), (y) one and one-half
(1.5) times the Company’s profit-sharing, 401(k) match and other Company
contributions made on behalf of the Executive to the Company’s tax-qualified and
nonqualified defined contribution plans during the twelve (12) month period
prior to the date of termination, and (z) such amount, if any, as may be
determined by the Chief Executive Officer in his sole discretion based on the
Executive’s Target Annual Bonus under the BPP (“Total Severance
Payment”). In the event that the Total Severance Payment becomes due
to the Executive under this Agreement, subject to Section 7, such payment shall
be made in equal installments, in accordance with the Company’s regular payroll
practices and procedures, as if it were to be paid over the eighteen (18) month
period following the date that the release described in Section 6(h) becomes
effective and irrevocable (the “Release Effective Date”); provided, however, that all
unpaid portions of the Total Severance Payment shall be distributed to the
Executive in a lump sum on the payroll date immediately preceding March 15 of
the calendar year following the calendar year in which the date of termination
occurs. Notwithstanding anything to the contrary in this paragraph,
in the event that the Executive will attain age 65 prior to the eighteen (18)
month anniversary of the date of termination, the Total Severance Payment shall
be reduced to a level determined by multiplying the amount of such payment by a
fraction, the numerator of which shall be the number of full months between the
date of termination and the date the Executive will attain age 65 (and the
numerator will not be reduced to reflect any six (6) month delay in payment that
may be required pursuant to Section 7), and the denominator of which shall be
eighteen (18). In addition, the period during which the Executive
will receive installment payments with respect to the Total Severance Payment
will also be reduced accordingly.
(ii) If such
termination occurs prior to the payment of the Executive’s Annual Bonus payable
with respect to the immediately preceding calendar year, payment of such Annual
Bonus for such period, in the amount, and at such time, as [he/she] would
otherwise have been entitled under the terms of the BPP had employment not
terminated.
(iii) All
outstanding stock options, stock appreciation rights, restricted stock units,
restricted shares and other equity-based awards (the “Equity Incentives”) held
by the Executive shall be governed by the terms and conditions of the equity
compensation plans and award agreements pursuant to which they were
granted.
(i) Change in
Control payments in a lump sum in an aggregate amount equal to three (3) times
the sum of (x) the Executive’s then-current Base Salary (disregarding any
reduction in salary made after the Change in Control or in contemplation of the
Change in Control), (y) the Executive’s Target Annual Bonus for the year of
termination or, if greater, the Target Annual Bonus for the year in which the
Change in Control occurred, and (z) the Company’s profit-sharing, 401(k)
match and other Company contributions made on behalf of the Executive to the
Company’s tax-qualified and nonqualified defined contribution plans during the
twelve (12) months prior to the date of termination (“Total Change in Control
Payment”). Notwithstanding anything to the contrary in this
paragraph, in the event that the Executive will attain age 65 prior to the third
(3rd) anniversary of the date of termination, the Total Change in Control
Payment shall be reduced to a level determined by multiplying the amount of such
payment by a fraction, the numerator of which shall be the number of full months
between the date of termination and the date the Executive will attain age 65
(and the numerator will not be reduced to reflect any six (6) month delay in
payment that may be required pursuant to Section 7), and the denominator of
which shall be thirty-six (36). The Total Change in Control Payment
shall be paid on the Release Effective Date.
(ii) If such
termination occurs prior to the payment of the Executive’s Annual Bonus payable
with respect to the immediately preceding calendar year, payment of such Annual
Bonus for such period, in the amount, and at such time, as [he/she] would
otherwise have been entitled under the terms of the BPP had employment not
terminated.
(iii)
Notwithstanding the terms and conditions of the equity compensation plans and
award agreements pursuant to which outstanding awards were granted, upon
termination of the Executive’s employment, all Equity Incentives held by the
Executive will become fully vested and, if applicable, immediately exercisable,
and will remain outstanding pursuant to their terms; provided, however, that the
treatment of all awards held by the Executive that are subject to
performance-based vesting criteria shall be governed by the terms and conditions
of the equity compensation plans and award agreements and/or award terms
pursuant to which they were granted.
(iv) The
Executive shall be entitled to Company-provided continuation of Benefits (on
either an insured or a self-insured basis, in the sole discretion of the
Company) for the Executive and [his/her] Eligible Dependents, on substantially
the same terms of such coverage that are in existence immediately prior to the
Executive’s date of termination (subject to commercial availability of such
coverage), until the earlier of: (A) the date on which the
Executive becomes employed by another employer, or (B) the third
anniversary of the Executive’s date of termination; provided, however, that such
coverage shall run concurrently with any coverage available to the Executive and
[his/her] Eligible Dependents under COBRA; and provided further,
however, that
the Executive shall immediately notify the Company if [he/she] and [his/her]
Eligible Dependents become covered under Medicare or another employer’s group
health plan, at which time the Company’s provision of medical coverage for the
Executive and/or [his/her] Eligible Dependents, as applicable, will
cease. The Executive shall not be entitled to any other perquisites
(except as otherwise explicitly provided in the applicable perquisite plan or
policy or in this Agreement). Notwithstanding anything to the
contrary in this Section 6(b)(iv), in the event the Executive attains age 65
prior to the third anniversary of [his/her] date of termination, the benefits
provided for in this Section 6(b)(iv) shall cease on the date the Executive
attains age 65; provided, however, that if the
commencement of benefits under this Section 6(b)(iv) is delayed by six (6)
months as a result of Section 7, the Executive shall continue to receive the
benefits under this Section 6(b)(iv) following attainment of age 65 solely
during the period necessary to avoid a reduction in benefits as a result of the
six (6) month delay.
(i) Payment
of any unpaid Base Salary accrued through the date of termination (to be paid on
the scheduled payment date for such Base Salary) and any unreimbursed business
expenses incurred through the date of termination.
(ii) Subject
to Section 6(h), such amount, if any, as may be determined by the Chief
Executive Officer in his sole discretion based on the Executive’s Target Annual
Bonus under the BPP (to be paid on the Release Effective Date).
(iii) If such
termination occurs prior to the payment of the Executive’s Annual Bonus payable
with respect to the immediately preceding calendar year, payment of such Annual
Bonus for such period, in the amount, and at such time, as [he/she] would
otherwise have been entitled under the terms of the BPP had employment not
terminated.
(iv) Continuation
of the ability of the Executive or the Executive’s beneficiaries (as applicable)
to exercise all outstanding awards granted to the Executive under the Incentive
Plan that became vested and exercisable on or prior to such date of termination
in accordance with the terms and conditions of such grants.
(i) In the
event the Executive determines that Good Reason exists to terminate [his/her]
employment with the Company, the Executive shall notify the Company in writing
of the specific event, within sixty (60) calendar days after the date that the
Executive becomes aware of the occurrence of such event, and such notice shall
also include the date on which the Executive will terminate employment with the
Company, which date shall be no earlier than sixty (60) calendar days after the
date of such notice and no later than the second anniversary of the date of the
occurrence of the event giving rise to Good Reason; provided, however, that the
Chief Executive Officer, in his sole discretion, may relieve the Executive of
[his/her] duties effective immediately upon the Company’s receipt of notice
provided pursuant to this Section 6(g).
(ii) Within
thirty (30) calendar days after the Company’s receipt of such written notice,
the Company shall notify the Executive that it agrees or disagrees with the
Executive’s determination that the event specified in the Executive’s notice
constitutes Good Reason. Notwithstanding any other provision of this
Agreement, the Company’s determination whether it agrees or disagrees with the
Executive’s determination that the event specified in the Executive’s notice
constitutes Good Reason shall be reasonable, based on all the relevant facts and
circumstances. The arbitrator in any arbitration proceeding initiated
pursuant to Section 13 of this Agreement, in which the existence of Good Reason
is an issue, shall be expressly empowered and directed to review, de novo, the
facts and circumstances claimed by the Executive to constitute Good
Reason.
(iii) In the
event the Company notifies the Executive that it agrees with the Executive’s
determination that the event specified in the Executive’s notice constitutes
Good Reason, the Company, in its sole discretion, shall either
(y) undertake to cure the circumstances that gave rise to Good Reason
within thirty (30) calendar days of the Company’s response to Executive under
Section 6(g)(ii), above, or (z) advise the Executive that [his/her]
employment with the Company shall terminate on [his/her] date of termination as
determined under Section 6(g)(i), above. In the event that the
Executive and the Company do not agree that the action undertaken by the Company
cures the circumstances that gave rise to Good Reason, the Executive shall be
entitled to pursue the arbitration procedures set out in Section 13 of this
Agreement. If the Executive’s claim in arbitration is ultimately
concluded in the Executive’s favor, the Executive shall retain the right to
receive the payments and benefits under this Agreement. If, during
the two-year period following a Change in Control, the Company attempts to cure
the circumstances giving rise to Good Reason, the Company shall have the burden
of proof to establish that such circumstances have been cured.
(iv) In the
event the Company notifies the Executive that it disagrees with the Executive’s
determination that the event specified in the Executive’s notice constitutes
Good Reason, the Executive may terminate [his/her] employment on the date
specified in the notice (or such earlier date as determined by the Chief
Executive Officer in his sole discretion or such later date as the Executive and
the Company may mutually agree in writing) or may elect to continue [his/her]
employment by so notifying the Company in writing. In either event,
the Executive shall be entitled to pursue the arbitration procedures set out in
Section 13 of this Agreement. If the Executive’s claim in arbitration
is ultimately concluded in the Executive’s favor, the Executive shall retain the
right to receive the payments and benefits under this Agreement. If,
during the two-year period following a Change in Control, the Company disputes
the existence of Good Reason, the Company shall have the burden of proof to
establish that Good Reason does not exist.
(v) Notwithstanding
the date on which the Executive’s termination occurs following the completion of
the steps set forth in this Section 6(g), so long as an event that constitutes
Good Reason occurs during the Term and the Executive delivers the written notice
of termination for Good Reason to the Company at any time prior to the
expiration of the Term, for purposes of the payments, benefits and other
entitlements set forth in this Section 6, the termination of the Executive’s
employment pursuant thereto shall be deemed to be a resignation for Good Reason
during the Term.
(iii) Contest. If
the Company notifies the Executive in writing, within sixty (60) business days
following receipt from the Executive of notification of the IRS claim, that it
desires to contest such claim, the Executive shall:
(A) Give the
Company any information reasonably requested by the Company relating to such
claim;
(B) 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 selected by the
Company and reasonably acceptable to the Executive;
(C) Cooperate
with the Company in good faith in order to effectively contest such claim;
and
(D) Permit
the Company to participate in any proceedings relating to such claim if the
Company elects not to assume and control the defense of such claim;
10. Excise
Tax. In the event that
it is determined (by the reasonable computation by an independent accounting or
consulting firm chosen by the Company (the “Firm”), which determination shall be
certified by the Firm and set forth in a certificate delivered to the Executive)
that the aggregate amount of the payments, distributions, benefits and
entitlements of any type paid or provided to the Executive under the terms of
this Agreement or under any other plan, program, policy, or other arrangement,
either alone or in combination with other elements of compensation and benefits
paid or provided to the Executive (including any payment, distribution, benefit
or entitlement made by any person or entity effecting a Change in Control), in
each case, that could be considered “parachute payments” within the meaning of
Section 280G of the Code (such payments, the “Parachute Payments”) that, but for
this Section 10 would be payable to the Executive, exceeds the greatest amount
of Parachute Payments that could be paid to the Executive without giving rise to
any liability for any excise tax imposed by Section 4999 of the Code (or any
successor provision thereto) or any similar tax imposed by state or local law,
or any interest or penalties with respect to such tax (such tax or taxes,
together with any such interest or penalties, being hereafter collectively
referred to as the “Excise Tax”), then the aggregate amount of Parachute
Payments payable to the Executive shall not exceed the amount which produces the
greatest after-tax benefit to the Executive after taking into account any Excise
Tax to be payable by the Executive. For the avoidance of doubt, this
provision will reduce the amount of Parachute Payments otherwise payable to the
Executive, if doing so would place the Executive in a better net after-tax
economic position as compared with not doing so (taking into account the Excise
Tax payable in respect of such Parachute Payments). The Executive
shall be permitted to provide to the Company written notice specifying which of
the Parachute Payments will be subject to reduction or elimination; provided,
however, that to the extent that the Executive’s ability to exercise such
authority would cause any Parachute Payment to become subject to any Section
409A Tax, or if the Executive does not provide the Company with any such written
notice, the Company shall reduce or eliminate the Parachute Payments by first
reducing or eliminating the portion of the Parachute Payments that are payable
in cash and then by reducing or eliminating the non-cash portion of the
Parachute Payments, in each case in reverse order beginning with payments or
benefits which are to be paid the furthest in time from the date of the Firm’s
determination. Except as set forth in the preceding sentence, any
notice given by the Executive pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or agreement
governing the Executive’s rights and entitlements to any benefits or
compensation.
12. [Reserved]
13. Dispute
Resolution. Except as
otherwise provided by Section 5(e) (Remedies) above, any controversy or claim
arising out of or relating to this Agreement (or the breach thereof) shall be
settled by arbitration in the City of Chicago in accordance with the laws of the
State of Illinois by one arbitrator. The arbitrator shall be
appointed pursuant to Rule 11 of the American Arbitration Association’s
Commercial Arbitration Rules, amended and effective September 15,
2005. The arbitration shall be conducted in accordance with the rules
of the American Arbitration Association, Commercial Arbitration
Rules. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
16. Entire
Agreement; Amendments.
This Agreement represents the entire agreement between the Executive and
the Company in respect of the subject matter contained herein and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations, or warranties, whether oral or written, by any officer,
executive, or representative of any party hereto. Except as
specifically provided in Section 7, no amendments or modifications to this
Agreement may be made except in writing signed by the Company (as authorized by
the Board or the Committee) and the Executive.
18. Notices. Any notice and
all other communications provided for in this Agreement to be given to a party
shall be in writing and shall be deemed to have been duly given when delivered
in person or two (2) business days after being placed in the United States mails
by certified or registered mail, postage prepaid, return receipt requested, duly
addressed to the party concerned at the address indicated below or to such
changed address as such party may subsequently furnish to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt:
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If
to the Company:
Brunswick
Corporation
0 X. Xxxxx
Xxxxx
Xxxx Xxxxxx,
XX 00000
Attn: Chief Human Resources
Officer
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If
to the Executive:
at the last
address filed with the Company
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19. 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. If any provision of this Agreement shall be held invalid
or unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with
law. In furtherance and not in limitation of the foregoing, should
the duration or geographical extent of, or business activities covered by, any
provision of this Agreement be in excess of that which is valid and enforceable
under applicable law, then such provision shall be construed to cover only that
duration, extent, or activities which may be validly enforced.
22. No
Assignment or Attachment. Except as
required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation, or to execution, attachment, levy, or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void, and of no effect;
provided, however, that nothing
in this Section 22 shall preclude the assumption of such rights by executors,
administrators, or other legal representatives of the Executive or [his/her]
estate and their assigning any rights hereunder to the person or persons
entitled thereto; and provided further,
however, that
the Company may not assign this Agreement except in connection with an
assignment or disposition of all or substantially all of the assets or stock of
the Company or the division, subsidiary, or business unit for which the
Executive is providing services under this Agreement or by law as a result of a
merger or consolidation.
25. Governing
Law. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Illinois, without regard to its choice of
laws provisions, for contracts made and to be performed wholly in such state;
provided, however, the rights
of the Executive to indemnification under Section 9 shall be governed by the
laws of the State of Delaware.
26. Termination
of Initial Agreement. From and after
the Effective Date, this Agreement shall supersede any other employment
agreement, severance agreement, indemnification agreement and change of control
agreement between the parties.
IN
WITNESS THEREOF, the Executive has hereunto set [his/her] hand and the Company
has caused these presents to be executed in its name and on its behalf, and its
corporate seal to be hereunto affixed, all as of the Effective
Date.
Executive
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Brunswick
Corporation
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By:
___________________
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By:
____________________
Xxxxxx
X. XxXxx
Chief
Executive Officer
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Appendix
I
Definitions.
1.
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“Annual Bonus”
shall have the meaning set forth in Section 4(b) of this
Agreement.
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2.
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“Brunswick”
shall mean the Company.
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3.
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“Base Salary”
shall have the meaning set forth in Section 4(a) of this
Agreement.
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4.
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“Benefits” shall
have the meaning set forth in Section 6(a)(iv) of this
Agreement.
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5.
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“Board” shall
mean the Board of Directors of the
Company.
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6.
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“BPP” shall have
the meaning set forth in Section 4(b) of this
Agreement.
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7.
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“Business Relocation
Beyond a Reasonable Commuting Distance” shall mean that, as a
result of either a relocation of the Company or a reassignment of the
Executive, a change occurs in the Executive’s principal work location to a
location that (i) is more than fifty (50) highway miles from the
Executive’s principal work location immediately prior to the relocation,
and (ii) increases the Executive’s commuting distance in highway
mileage.
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8.
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“Cause” shall
mean the Executive’s:
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(a)
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Conviction
of a crime, including by a plea of guilty or nolo contendere,
involving theft, fraud, perjury, or moral
turpitude;
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(b)
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Intentional
or grossly negligent disclosure of confidential or trade secret
information of the Company or a Related Company to anyone not entitled to
such information;
|
|
(c)
|
Willful
omission or dereliction of any statutory or common law duty of loyalty to
the Company or a Related Company;
|
|
(d)
|
A
willful and material violation of the Company’s Code of Conduct or any
other written Company policy; or
|
|
(e)
|
Repeated
failure to carry out the material components of the Executive’s duties
despite specific written notice to do so by the Chief Executive Officer,
other than any such failure as a result of incapacity due to physical or
mutual illness.
|
9.
|
“Change In
Control” shall mean the happening of any of the following
events:
|
(a)
|
Any
individual, entity, or group (within the meaning of Sections 13(d)(3) or
14(d)(2) of the Exchange Act) (an “Entity”) becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
25% or more of either (A) the outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”), or (B) the combined
voting power of the outstanding voting securities of the Company entitled
to vote generally in the election of directors (the “Outstanding Company
Voting Securities”); excluding, however, the following: (1) any
acquisition by the Company or any subsidiary, (2) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by, or under common control with,
the Company, (3) any acquisition by an underwriter temporarily holding
such Outstanding Company Common Stock or Outstanding Company Voting
Securities pursuant to an offering of such securities or (4) any
acquisition by any corporation pursuant to a transaction which complies
with clauses (A), (B), and (C) of paragraph (c) of this
definition;
|
(b)
|
Individuals
who, as of the date hereof, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute a majority thereof; provided, however,
that any individual becoming a director whose election, or nomination for
election by the Company’s stockholders, was approved by a vote of at least
50% of the directors then comprising the Incumbent Board shall be
considered as though such individual was a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of an Entity other than the
Board;
|
(c)
|
Consummation
of a transaction involving (i) a merger, reorganization or consolidation
of the Company or any direct or indirect subsidiary of the Company, or
(ii) a sale or other disposition of all or substantially all of the assets
of the Company (each, a “Corporate Transaction”); excluding, however, such
a Corporate Transaction pursuant to which (A) all or substantially all of
the individuals and entities who are the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Corporate Transaction will
beneficially own, directly or indirectly, more than sixty percent (60%)
of, respectively, the outstanding shares of common stock, and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Corporate Transaction (including, without
limitation, a corporation or other person which as a result of such
transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) (each, a
“Continuing Company”) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be (excluding any outstanding voting
securities of the Continuing Company that such beneficial owners hold
immediately following the consummation of the Corporate Transaction as a
result of their ownership prior to such consummation of voting securities
of any corporation or other entity involved in or forming part of the
Continuing Company, other than the Company or one of its subsidiaries),
(B) no Entity (other than the Company, any employee benefit plan (or
related trust) of the Company, or the Continuing Company will beneficially
own, directly or indirectly, twenty-five percent (25%) or more of,
respectively, the outstanding shares of common stock of the Continuing
Company or the combined voting power of the outstanding voting securities
of the Continuing Company entitled to vote generally in the election of
directors, unless such ownership resulted solely from ownership of
securities of the Company prior to the Corporate Transaction, and (C)
individuals who were members of the Incumbent Board will, immediately
after the consummation of the Corporate Transaction, constitute at least a
majority of the members of the board of directors of the Continuing
Company; or
|
(d)
|
The
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
|
10.
|
“Chief Executive
Officer” shall mean the chief executive officer of the
Company.
|
11.
|
“COBRA” shall
mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.
|
12.
|
“Code” shall
mean the Internal Revenue Code of 1986, as amended, and the regulations
thereunder as in effect from time to
time.
|
13.
|
“Committee”
shall mean the Human Resources and Compensation Committee of the
Board.
|
14.
|
“Company” shall
mean Brunswick Corporation, a Delaware
corporation.
|
15.
|
“Competitive
Activity” shall have the meaning set forth in Section 5(a)(i) of
this Agreement.
|
16.
|
“Confidential
Information” shall have the meaning set forth in Section 5(b)(iii)
of this Agreement.
|
17.
|
“Effective Date”
shall have the meaning set forth in the Preamble of the
Agreement.
|
18.
|
“Eligible
Dependents” shall have the meaning set forth in Section 6(a)(iv) of
this Agreement.
|
19.
|
“Equity
Incentives” shall have the meaning set forth in Section 6(a)(iii)
of this Agreement.
|
20.
|
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as
amended.
|
21.
|
“Excise Tax”
shall have the meaning set forth in Section 10 of this
Agreement.
|
22.
|
“Executive”
shall mean the individual identified in the Preamble to this
Agreement.
|
23.
|
“Firm” shall
have the meaning set forth in Section 10 of this
Agreement.
|
24.
|
“Good Reason”
shall mean the occurrence of any of the following events without the
Executive’s express written
consent:
|
(a)
|
A
material breach by the Company of any provision of this Agreement
including, without limitation, the Company’s failure to pay any portion of
Executive’s compensation when due or to include Executive in any bonus or
incentive plan that applies to similarly situated senior executives of the
Company;
|
(b)
|
The
Company’s failure to provide, or continue to provide, Executive with
either the perquisites or employee health and welfare benefits (including,
without limitation, life insurance, medical, dental, vision, long-term
disability and similar benefits), generally provided to similarly situated
senior executives of the Company;
|
(c)
|
A
Reduction in Authority or Responsibility of the
Executive;
|
(d)
|
A
Reduction in Compensation;
|
(e)
|
A
Business Relocation Beyond a Reasonable Commuting Distance;
and
|
(f)
|
Following
a Change in Control, the Company’s failure to obtain a satisfactory
agreement from any successor to assume and agree to abide by terms of this
Agreement.
|
Whether a
Reduction in Authority or Responsibility of the Executive has occurred shall be
determined in accordance with the criteria set forth below in the definition of
Reduction in Authority or Responsibility; provided, however, that (A) a
change in the Executive’s reporting relationship to another executive who is
within the same reporting level (as that term is used in the Company’s
Delegation of Authority Policy or any successor policy); or (B) a reduction in
the Executive’s business unit’s budget or a reduction in the Executive’s
business unit’s head count or number of direct reports, by themselves, shall not
constitute Good Reason.
25.
|
“Income Taxes”
shall mean any tax on personal income (including any employment and
payroll tax) that is levied by the federal government of the United States
or any by any state or local government within the United States or any
foreign government.
|
26.
|
“Incentive Plan”
shall have the meaning set forth in Section 4(d) of this
Agreement.
|
27.
|
“IRS” shall mean
the Internal Revenue Service.
|
28.
|
“Long-Term
Disability” shall mean the Executive’s mental or physical condition
which would render the Executive eligible to receive disability benefits
under the Company’s long-term disability plan then in
effect.
|
29.
|
“Parachute
Payments” shall have the meaning set forth in Section 10 of this
Agreement.
|
30.
|
“Proceeding”
shall have the meaning set forth in Section 5(c) of this
Agreement.
|
31.
|
“Products” shall
have the meaning set forth in Section 24 of this
Agreement.
|
32.
|
“Rate of
Compensation” shall mean the sum of the Executive’s Base Salary and
Target Annual Bonus as of the date of
termination.
|
33.
|
“Reduction in Authority
or Responsibility” shall mean, during the Term, (i) the assignment
to the Executive, during the two-year period after a Change in Control, of
any duties that are materially inconsistent in any respect with the
Executive’s position (which may include status, offices, titles, and
reporting requirements), authority, duties, or responsibilities as in
effect immediately prior to such assignment, or (ii) prior to a Change in
Control or after the second anniversary of a Change in Control, a material
diminution in the Executive’s authority, duties, or responsibilities,
excluding for this purpose (A) an isolated, insubstantial, and inadvertent
action taken in good faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive, or (B) any
temporary Reduction in Authority or Responsibility while the Executive is
absent from active service on any approved disability, or other approved
leave of absence.
|
|
It
is intended by this definition that a Change in Control by itself, absent
a Reduction in Authority or Responsibility as described above, will not
constitute Good Reason.
|
34.
|
“Reduction in
Compensation” shall mean (A) if within two (2) years following a
Change in Control, (i) a reduction in the Executive’s “Total Annual
Compensation” (defined as the sum of the Executive’s Base Salary and
Target Annual Bonus) for any calendar or fiscal year, as applicable, to an
amount that is less than the Executive’s Total Annual Compensation in
effect immediately prior to such reduction (“Compensation Reduction”),
(ii) the elimination of any Company incentive compensation plan in which
Executive is a participant (including, without limitation, BPP and the
Incentive Plan) without the adoption of a substantially comparable
replacement plan (“Compensation Plan Elimination”), or (iii) the failure
to provide the Executive with equity compensation opportunities or
long-term cash incentive compensation opportunities that have a value that
is substantially comparable to the value of the equity compensation
opportunities provided to the Executive immediately prior to the Change in
Control; or (B) if other than within two (2) years following a Change in
Control, a Compensation Reduction, a Compensation Plan Elimination or a
reduction in equity compensation opportunities that is not applicable to
all similarly situated senior executives of the
Company.
|
35.
|
“Related
Company” shall mean any subsidiary or affiliate of the
Company.
|
36.
|
“Release Effective
Date” shall have the meaning set forth in Section 6(a)(i) of this
Agreement.
|
37.
|
“Released
Parties” shall have the meaning set forth in Section 6(h) of this
Agreement.
|
38.
|
“Restoration
Plan” shall mean the Brunswick Restoration Plan, as amended from
time to time.
|
39.
|
“Section 409A
Tax” shall have the meaning set forth in Section 7 of this
Agreement.
|
40.
|
“Section 409A Tax
Adjustment Payment” shall have the meaning set forth in Section 7
of this Agreement.
|
41.
|
“Target Annual
Bonus” shall have the meaning set forth in Section 4(b) of this
Agreement.
|
42.
|
“Term” shall
have the meaning set forth in Section 3 of this
Agreement.
|
43.
|
“Total Change in
Control Payment” shall have the meaning set forth in Section
6(b)(i) of this Agreement.
|
44.
|
“Total Severance
Payment” shall have the meaning set forth in Section 6(a)(i)
of this Agreement.
|
45.
|
“Works” shall
have the meaning set forth in Section 24 of this
Agreement.
|
Appendix II
Changes
to Base Salary,
BPP
Awards,
And
Equity Incentives Awards
Appendix
III
GENERAL
RELEASE
1.
|
I,
[ ], for and in consideration of certain payments to be made and the
benefits to be provided to me under the Terms and Conditions of
Employment, dated _____________, (the “Agreement”) with Brunswick
Corporation (the “Company”), and conditioned upon such payments and
provisions, do hereby REMISE, RELEASE, AND FOREVER DISCHARGE the Company
and each of its part, present and future subsidiaries and affiliates,
their past, present and future officers, directors, shareholders,
partners, distributees, owners, trustees, representatives, employees and
agents, their respective successors and assigns, heirs, executors and
administrators (hereinafter collectively included within the term the
“Company”), acting in any capacity whatsoever, of and from any and all
manner of actions and causes of action, suits, debts, claims, charges,
complaints, grievances, liabilities, obligations, promises, agreements,
controversies, damages, demands, rights, costs, losses, debts and expenses
of any nature whatsoever, in law or in equity, which I ever had, now have,
or hereafter may have, or which my heirs, executors or administrators
hereafter may have, by reason of any matter, cause or thing whatsoever
from the beginning of my employment with Brunswick Corporation, to the
date of these presents arising from or relating in any way to my
employment relationship, and the terms, conditions and benefits payments
resulting therefrom, and the termination of my employment relationship
with Brunswick Corporation, including but not limited to, any claims which
have been asserted, could have been asserted, or could be asserted now or
in the future under any federal, state or local law, statute, rule,
ordinance, regulation, or the common law, including, but not limited to,
claims or rights arising under the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq., as
amended, the Americans With Disabilities Act, 42 U.S.C. 12101 et seq., Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as
amended, any contracts between the Company and me and my common law claims
now or hereafter recognized and all claims for counsel fees and costs;
provided, however, that this General Release shall not apply to (i) any
entitlements under the terms of the Agreement; (ii) my right to be
indemnified by the Company, pursuant to the bylaws of the Company, for any
liability, cost or expense for which I would have been indemnified for
actions taken on behalf of the Company during the term and within the
scope of my employment by the Company; or (iii) any right I may have to
challenge that I entered into this General Release knowingly and
voluntarily.
|
2.
|
Subject
to the limitations of paragraph 1 above, I expressly waive all rights
afforded by any statute which expressly limits the effect of a release
with respect to unknown claims. I understand the significance
of this release of unknown claims and the waiver of statutory protection
against a release of unknown
claims.
|
3.
|
I
agree and covenant that neither I, nor any person, organization, or other
entity acting on my behalf, has filed in any forum a charge, claim, suit,
or cause of action against the Company or its subsidiaries or affiliates
relating in any way to my employment relationship with the Company, or the
termination thereof. I further agree and acknowledge that the
separation pay and benefits the Company is providing to me pursuant to the
Agreement shall be the sole relief provided to me for the claims that are
released by me in this General Release and that I will not be entitled to
recover and agree to waive any monetary benefits or recovery against the
Company or its subsidiaries or affiliates in connection with any
proceeding, claim, or charge without regard to who has brought such
proceeding, claim, or charge.
|
4.
|
I
hereby agree and recognize that my employment by the Company was
permanently and irrevocably severed on _______________, and the Company
has no obligation, contractual or otherwise to me to hire, rehire or
re-employ me in the future. I acknowledge that the terms of the
Agreement provide me with payments and benefits which are in addition to
any amounts to which I otherwise would have been
entitled.
|
5.
|
I
hereby agree and acknowledge that the payments and benefits provided by
the Company are to bring about an amicable resolution of my employment
arrangements and are not to be construed as an admission of any violation
of any federal, state or local law, statute, rule, ordinance, regulation
or the common law, or of any duty owed by the Company and that the
Agreement and this General Release are made voluntarily to provide an
amicable resolution of my employment relationship with the Company and the
termination of the Agreement.
|
6.
|
I
hereby certify that I have read the terms of this General Release, that I
have been advised by the Company to discuss it with my attorney, and that
I understand its terms and effects. I acknowledge, further,
that I am executing this General Release of my own volition with a full
understanding of its terms and effects and with the intention of releasing
all claims recited herein in exchange for the consideration described in
the Agreement, which I acknowledge is adequate and satisfactory to
me. None of the above-named parties, nor their agents,
representatives, or attorneys have made any representations to me
concerning the terms or effects of this General Release other than those
contained herein.
|
7.
|
I
hereby acknowledge that I have been informed that I have the right to
consider this General Release for a period of 21 days prior to
execution. I also understand that I have the right to revoke
this General Release for a period of seven days following execution by
giving written notice to the Company at 0 X. Xxxxx Xx., Xxxx Xxxxxx, XX
00000-0000, Attention: Vice President, General Counsel and
Secretary.
|
8.
|
I
hereby acknowledge that the provisions of Sections , and of the Agreement
shall continue in full force and effect for the balance of the time
periods provided therein and that I will abide by and fully perform such
obligations.
|
Intending
to be legally bound hereby, I execute the foregoing General Release this _____
day of ________________, 20___.
Witness
Appendix IV
INDEMNIFICATION TERMS AND
CONDITIONS
Brunswick
Corporation (the “Corporation”) shall indemnify Executive (hereinafter,
“Indemnitee”) against expenses and costs incurred by Indemnitee in connection
with any claims, suits or proceedings arising from [his/her] service to the
Corporation, to the fullest extent that is lawful in accordance with the
following terms and conditions:
1. Acts and Omissions Covered
By This Agreement. The Corporation’s agreement to indemnify
Indemnitee (“Agreement”) shall cover any act or omission by an Indemnitee which
(i) occurs or is alleged to have occurred by reason of [his/her] being or having
been an officer or a director, (ii) occurs or is alleged to have occurred
before, during or after the time when the Indemnitee served as an officer or a
director and (iii) gives rise to, or is the direct or indirect subject of a
claim in any threatened, pending or completed action, suit or proceeding at any
time or times whether during or after [his/her] service as an officer or
director.
2. Indemnity.
|
(a)
|
The
Corporation hereby agrees to indemnify, and keep indemnified in accordance
with, and to the fullest extent permitted by the Corporation’s charter and
that is lawful, and regardless of any by-law provision to the contrary,
Indemnitee, from and against any expenses (including attorney’s fees),
judgments, fines, taxes, penalties and amounts paid in settlement actually
and reasonably incurred by Indemnitee in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that [he/she] is or
was an officer or a director of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise and whether or not such action is by or in the right of the
Corporation or that other corporation, partnership, joint venture, trust
or other enterprise with respect to which the Indemnitee serves or has
served.
|
|
(b)
|
Despite
anything to the contrary in subsection (a), the Corporation agrees to
indemnify Indemnitee in a suit or proceeding initiated by the Indemnitee
only if the Indemnitee acted with the authorization of the Corporation in
initiating that suit or proceeding. However, an arbitration
proceeding brought under Section 8 shall not be subject to this subsection
(b).
|
|
(c)
|
Except
as set forth in Section 5 (Advancement of Expenses), the specific amounts
that were actually and reasonably incurred shall be indemnified by the
Corporation in the amount submitted by the Indemnitee unless the Board of
Directors (the “Board”) determines that the request is unreasonable or
unlawful. If the Board so determines and the Board and the
Indemnitee cannot agree, any disagreement they have shall be resolved by a
decision of the arbitrator in an arbitration proceeding pursuant to
Section 8. For purposes of this Agreement, references to “other
enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of the
Corporation” shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or
beneficiaries.
|
|
(d)
|
Any
indemnification payments made to the Indemnitee shall be made in a manner
that does not cause such payments to constitute deferred compensation
under Treas. Reg. 1.409A-1(b)(10) and any successor
thereto.
|
3. Burden of
Proof. Indemnitee shall be presumed to be entitled to
indemnification for any act or omission covered in Section 1 of this
Agreement. The burden of proof of establishing that Indemnitee is not
entitled to indemnification because of the failure to fulfill some requirement
of Delaware law, the Corporation’s charter, by-laws, or this Agreement shall be
on the Corporation.
4. Notice by
Indemnitee. Indemnitee shall notify the Corporation in writing
of any matter with respect to which Indemnitee intends to seek indemnification
hereunder as soon as reasonably practicable following the receipt by Indemnitee
of written threat thereof; provided, however, that failure
to so notify the Corporation shall not constitute a waiver by Indemnitee of
[his/her] rights hereunder.
5. Advancement of
Expenses. In the event of any action, suit or proceeding
against Indemnitee which may give rise to a right of indemnification from the
Corporation pursuant to this Agreement, following written request to the
Corporation by the Indemnitee, the Corporation shall advance to Indemnitee
amounts to cover expenses incurred by Indemnitee in defending the action, suit
or proceeding in advance of final disposition upon receipt of (i) an undertaking
by or on behalf of the Indemnitee to repay the amount advanced in the event that
it shall be ultimately determined in accordance with Section 3 of this Agreement
that [he/she] is not entitled to indemnification by the Corporation, and (ii)
satisfactory evidence as to the amount of such expenses. Indemnitee’s
written certification together with a copy of the statement paid or to be paid
by Indemnitee shall constitute satisfactory evidence unless determined to the
contrary in an arbitration proceeding conducted pursuant to Section 8 of this
Agreement.
6. Non-Exclusivity of Right of
Indemnification. The indemnification rights granted to
Indemnitee under this Agreement shall not be deemed exclusive of, or in
limitation of, any rights to which Indemnitee may be entitled under Delaware
law, the Corporation’s charter or By-laws, any other agreement, vote of
stockholders or directors or otherwise.
7. Termination of Agreement and
Survival of Right of Indemnification.
|
(a)
|
Subject
to subparagraph (b) of this section, this Agreement shall terminate when
the Indemnitee’s term of office as an officer or a director
ends.
|
|
(b)
|
The
rights granted to Indemnitee hereunder shall continue after termination as
provided in Section 1 and shall inure to the benefit of Indemnitee,
[his/her] personal representative, heirs, executors, administrators and
beneficiaries, and this Agreement shall be binding upon the Corporation,
its successors and assigns.
|
8. Arbitration of all Disputes
Concerning Entitlement. Any controversy or claim arising out
of or relating to this Agreement including, without limitation, the Indemnitee’s
entitlement to indemnification under this Agreement, shall be settled by
arbitration in the City of Chicago administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules, and judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Interest on any judgment shall be assessed at a
rate or rates the arbitrator considers just under the
circumstances. If it is necessary or desirable for the Indemnitee to
retain legal counsel or incur other costs and expenses in connection with
enforcement of [his/her] rights under this Agreement, the Corporation shall pay
[his/her] reasonable attorneys’ fees and costs and expenses incurred prior to
the tenth anniversary of the expiration of the “Term” (as defined in the Terms
and Conditions of Employment agreement between the Corporation and the
Indemnitee, dated as of June 1, 2009 in connection with enforcement of [his/her]
rights (including the enforcement of any arbitration award in court), regardless
of the final outcome, unless the arbitrator determines that under the
circumstances recovery by the Indemnitee of all or a part of any such fees and
costs and expenses would be unjust.
9. Governing
Law. The Corporation’s obligations to indemnify Indemnitee
under these terms and conditions shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to its choice
of law provisions.