FORM ECNA EMPLOYMENT CONTINUATION AND NONCOMPETITION AGREEMENT
Exhibit 10.1
FORM ECNA
EMPLOYMENT CONTINUATION AND
NONCOMPETITION AGREEMENT
NONCOMPETITION AGREEMENT
THIS AGREEMENT between [Subsidiary Corporation], a [State] corporation (the “Company”),
NATIONAL FUEL GAS COMPANY, a New Jersey corporation (“National”), and (the
“Executive”), dated as of the [ ] day of [ ], 200[7].
(i) either (a) the Company or National shall receive a report on Schedule 13D, or an amendment
to such a report, filed with the Securities and Exchange Commission pursuant to Section 13(d) of
the Securities Exchange Act of 1934 (the “1934 Act”) disclosing that any person (as such term is
used in Section 13(d) of the 1934 Act) (“Person”), is the beneficial owner, directly or indirectly,
of twenty (20) percent or more of the outstanding stock of National or (b) the Company or National
has actual knowledge of facts which would require any Person to file such a report on Schedule 13D,
or to make an amendment to such a report, with the SEC (or would be required to file such a report
or amendment upon the lapse of the applicable period of time specified in Section 13(d) of the 0000
Xxx) disclosing that such Person is the beneficial owner, directly or indirectly, of twenty (20)
percent or more of the outstanding stock of National;
(ii) purchase by any Person, other than National or a wholly-owned subsidiary of National or
an employee benefit plan sponsored or maintained by National or a wholly-owned subsidiary of
National, of shares pursuant to a tender or exchange offer to acquire any stock of National (or
securities convertible into stock) for cash, securities or any other consideration provided that,
after consummation of the offer, such Person is the beneficial owner (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of twenty (20) percent or more of the outstanding
stock of National (calculated as provided in paragraph (d) of Rule 13d-3 under the 1934 Act in the
case of rights to acquire stock);
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(iii) approval by the shareholders of National of (a) any consolidation or merger of National
in which National is not the continuing or surviving corporation or pursuant to which shares of
stock of National would be converted into cash, securities or other property, other than a
consolidation or merger of National in which holders of its stock immediately prior to the
consolidation or merger have substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the consolidation or merger as immediately before, or (b)
any consolidation or merger in which National is the continuing or surviving corporation but in
which the common shareholders of National immediately prior to the consolidation or merger do not
hold at least a majority of the outstanding common stock of the continuing or surviving corporation
(except where such holders of common stock hold at least a majority of the common stock of the
corporation which owns all of the common stock of National), or (c) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all or substantially all
the assets of National; or
(iv) a change in the majority of the members of the Board of Directors of National (the
“Board”) within a 24-month period unless the election or nomination for election by National’s
shareholders of each new director was approved by the vote of at least two-thirds of the directors
then still in office who were in office at the beginning of the 24-month period.
(i) a Person commences a tender offer (with adequate financing) for securities representing at
least twenty (20) percent of the outstanding stock of National (calculated as provided in paragraph
(d) of Rule 13d-3 under the 1934 Act in the case of rights to acquire stock);
(ii) National enters into an agreement the consummation of which would constitute a Change in
Control;
(iii) proxies for the election of directors of National are solicited by anyone other than
National; or
(iv) any other event occurs which is deemed to be a Potential Change in Control by the Board.
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participate in or be covered under all pension, retirement, deferred compensation, savings,
medical, dental, health, disability, group life, accidental death and travel accident insurance
plans and programs of the Company and its affiliated companies at a level that is commensurate
with the Executive’s participation in such plans immediately prior to the Effective Date, or, if
more favorable to the Executive, at the level made available to the Executive or other similarly
situated officers at any time thereafter.
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may, upon not less than 30 days’ written notice to the Company, voluntarily terminate employment
for any reason (including early retirement under the terms of any of the Company’s retirement plans
as in effect from time to time), provided that any termination by the Executive pursuant to Section
6(d) on account of Good Reason (as defined therein) shall not be treated as a voluntary termination
under this Section 6(b).
under this Section 6(b).
(i) a material diminution in (A) the Executive’s authority, duties, or responsibilities,
(B) the Executive’s base compensation or (C) the budget over which the Executive retains
authority;
(ii) a material diminution in the authority, duties, or responsibilities of the supervisor
to whom the Executive is required to report, including a requirement that the Executive
report to a corporate officer or employee instead of reporting directly to the board of
directors of a corporation; or
(iii) the Company’s requiring the Executive to be based at any office or location outside
of the United States and/or more than 30 miles from that location at which he performed his
services specified under the provisions of Section 4 immediately prior to the Change in
Control, except for travel reasonably required in the performance of the Executive’s
responsibilities; or
(iv) any other action or inaction that constitutes a material breach by the Company of this
Agreement;
provided, however, that to constitute Good Reason the Company shall have a period of 30
days to cure any acts which would otherwise give Executive the right to terminate his
employment for Good Reason. Such 30-day period shall commence as of the date of receipt by
the Company of the Notice of Termination.
In no event shall the mere occurrence of a Change in Control, absent any further impact on the
Executive, be deemed to constitute Good Reason. In the event that the Executive shall in good faith
give a
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Notice of Termination for Good Reason and it shall thereafter be determined that Good Reason did
not exist, the Executive shall, unless the Company and the Executive shall otherwise mutually
agree, return to employment with the Company within 5 business days of such decision, without any
impairment or other limitation of his rights hereunder, except that he shall not be paid his base
salary for any period he did not perform services and his annual bonus opportunity for such year
may be reduced to reflect his period of absence.
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Executive’s death or Disability under the Company’s plans, policies or programs (the “Additional
Benefits”).
Any Earned Salary shall be paid in cash in a single lump sum as soon as practicable, but in no
event more than 15 days (or at such earlier date required by law), following the Date of
Termination. Accrued Obligations and Additional Benefits shall be paid in accordance with the terms
of the applicable plan, program or arrangement.
(c) Termination by the Company other than for Cause and Termination by the Executive for Good
Reason. Subject to Section 7(f) below, if, during the Employment Period, the Company terminates the
Executive’s employment other than for Cause, or the Executive terminates his employment for Good
Reason, the Company shall pay to the Executive the following amounts:
(i) Severance Benefits. The Executive shall be paid the following:
(A) the Executive’s Earned Salary;
(B) a cash amount (the “Severance Amount”) equal to
(1) 1.99; times
(2) the sum of
(i) the Executive’s annual Base Salary; and
(ii) the average of the annual at risk compensation incentive program bonuses
or other bonuses (excluding sign-on bonuses) payable to the Executive
(including, for the purposes of this calculation, any amount of such bonuses
paid in the form of restricted stock (in lieu of cash), to be valued at the
date of grant) for the two fiscal years of the Company ending immediately prior
to the Effective Date (the “Average Bonus”); and
(C) the Accrued Obligations.
The Earned Salary and Severance Amount shall be paid in cash in a single lump sum as soon as
practicable, but in no event more than 10 days (or at such earlier date required by law), following
the Date of Termination; provided however that if the date payment would otherwise
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be due hereunder is after September 30, payment of the Severance Amount shall be paid on the first
business day in the following January.
Accrued Obligations shall be paid in accordance with the terms of the applicable plan, program or arrangement.
Accrued Obligations shall be paid in accordance with the terms of the applicable plan, program or arrangement.
(ii) Continuation of Welfare Benefits. If, during the Employment Period, the Company
terminates the Executive’s employment other than for Cause, or following a Change in Control the
Executive terminates his employment for Good Reason, the Executive (and, to the extent applicable,
his dependents) shall be entitled, after the Date of Termination until the earlier of (1) the
eighteen month anniversary of the Date of Termination (the “End Date”) and (2) the date the
Executive becomes eligible for comparable benefits under a similar plan, policy or program of a
subsequent employer, to continue participation in all of the Company’s employee and executive
welfare and fringe benefit plans, excluding further vacation pay (the “Benefit Plans”). To the
extent any such benefits cannot be provided under the terms of the applicable plan, policy or
program, the Company shall provide a comparable benefit under another plan or from the Company’s
general assets. The Executive’s participation in the Benefit Plans will be on the same terms and
conditions that would have applied had the Executive continued to be employed by the Company
through the End Date.
(iii) Qualification for Early Retirement. If the Executive is at least age 52 at his Date of
Termination, the Executive shall be deemed to have earned, and to have become vested in, the
retirement benefits (including, without limitation, any early retirement subsidy or supplement,
retiree life coverage or retiree medical benefits) that would have been payable or made available
to the Executive under any employee benefit plan sponsored or maintained by the Company or any of
its subsidiaries for which the Executive was eligible at the Date of Termination had he continued
in service for three additional years after the Date of Termination. The purpose and intent of this
provision is to provide the Executive with vesting and to bridge any gap of three or fewer years of
service to qualify for any additional benefits available for an early retiree (such as the benefits
under the Executive Retirement Plan (“ERP”) or the benefits available under the Retirement Plan
(“RP”) including the so-called Rule of 90), and not to increase the service taken into account for
purpose of determining the amount of benefits payable to the Executive beyond his actual period of
service through the Date of Termination.
The operation of this provision is illustrated by the following examples:
Example 1: Assume that, at the Executive’s Date of Termination, the Executive is exactly 53
years old, and has exactly 4 years of service for purposes of the ERP. Assume further that the
relevant RP and ERP provisions have not changed since the date of the execution of this Agreement.
The Executive would receive a benefit (in the form of a single life annuity) under the RP and ERP
in the aggregate in the form of a benefit beginning at age 56, equal to 4/5 times what he would
otherwise have received under a combination of those plans beginning at
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age 56. (Or, he could elect commencement of benefits at age 55 in reduced amounts per the terms of
the relevant plans.) Five is used in the denominator because the current ERP vesting policy is
attainment of age 55 and at least 5 years of service.
Example 2: The assumptions are the same as in example 1, except that the Executive has exactly
32 years of service (instead of 4). By reason of the additional credit provided under this
Agreement, the Executive would receive a benefit calculated as though payable under the RP (in the
form of a single life annuity), under the RP’s “Rule of 90,” that would begin at age 55-1/2 and
would equal [(53 + 32)/90] times what he would otherwise have received under the RP under the Rule
of 90 beginning at age 55-1/2 (the earliest date at which he otherwise could have retired and
commenced receiving benefits determined under the Rule of 90).
In both examples, (i) any portion of the incremental benefit that could not be paid under the
RP will be paid from the ERP or the Company’s general assets, (ii) final average salaries would be
determined under those plans as of the Executive’s Date of Termination and (iii) the Executive
would be entitled to elect forms of benefit other than the single life annuity.
Other fact patterns, and examples respecting other post-retirement benefits, would use similar
principles, but might use different math. For example, the current provisions concerning an
executive’s vesting in early retirement benefits under the RP, and concerning retiree medical
benefit vesting, have years of service requirements in excess of five years.
(d) Discharge of the Company’s Obligations. Except as expressly provided in the last
sentence of this Section 7(d), the amounts payable to the Executive pursuant to this Section 7
(whether or not reduced pursuant to Section 7(e)) following termination of his employment shall be
in full and complete satisfaction of the Executive’s rights under this Agreement and any other
claims he may have in respect of his employment by the Company or any of its subsidiaries. Such
amounts shall constitute liquidated damages with respect to any and all such rights and claims and,
upon the Executive’s receipt of such amounts, the Company shall be released and discharged from any
and all liability to the Executive in connection with this Agreement or otherwise in connection
with the Executive’s employment with the Company and its subsidiaries. Nothing in this Section
7(d) shall be construed to release the Company from its commitment to indemnify the Executive and
hold the Executive harmless from and against any claim, loss or cause of action arising from or out
of the Executive’s performance as an officer, director or employee of the Company or any of its
subsidiaries or in any other capacity, including any fiduciary capacity, in which the Executive
served at the request of the Company to the maximum extent permitted by applicable law and the
Governing Documents.
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(e) Limit on Payments by the Company.
(i) Application of Section 7(e). In the event that any amount or benefit paid or
distributed to the Executive pursuant to this Agreement, taken together with any amounts or
benefits otherwise paid or distributed to the Executive by the Company or any affiliated
company (collectively, the “Covered Payments”), would be an “excess parachute payment” as
defined in Section 280G of the Code and would thereby subject the Executive to the tax (the
“Excise Tax”) imposed under Section 4999 of the Code (or any similar tax that may hereafter
be imposed), the provisions of this Section 7(e) shall apply to determine the amounts
payable to the Executive pursuant to this Agreement.
(ii) Calculation of Benefits. Immediately following delivery of any Notice of
Termination, the Company shall notify the Executive of the aggregate present value of all
termination benefits to which he would be entitled under this Agreement and any other plan,
program or arrangement as of the projected Date of Termination, together with the projected
maximum payments, determined as of such projected Date of Termination that could be paid
without the Executive being subject to the Excise Tax.
(iii) Imposition of Payment Cap. If
(x) the aggregate value of all compensation payments or benefits to be paid or
provided to the Executive under this Agreement and any other plan, agreement or
arrangement with the Company exceeds the amount which can be paid to the Executive
without the Executive incurring an Excise Tax, and
(y) the net-after tax amount (taking into account all applicable taxes payable
by the Executive, including any Excise Tax) that the Executive would receive if the
limitation contained in this Section 7(e)(iii) were not imposed does not exceed the
net-after tax benefit the Executive would receive if such limitation were imposed
by more than $25,000, then the amounts payable to the Executive under this Section
7 shall be reduced (but not below zero) to the maximum amount which may be paid
hereunder without the Executive becoming subject to such an Excise Tax (such
reduced payments to be referred to as the “Payment Cap”). In the event that the
Executive receives reduced payments and benefits hereunder, the Executive shall
have the right to designate which of the payments and benefits otherwise provided
for in this Agreement that he will receive in connection with the application of
the Payment Cap.
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(A) such Covered Payments will be treated as “parachute payments” within the
meaning of Section 280G of the Code, and all “parachute payments” in excess of the
“base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as
subject to the Excise Tax, unless, and except to the extent that, in the good faith
judgment of the Company’s independent certified public accountants appointed prior
to the Effective Date or tax counsel selected by such Accountants (the
“Accountants”), the Company as a reasonable basis to conclude that such Covered
Payments (in whole or in part) either do not constitute “parachute payments” or
represent reasonable compensation for personal services actually rendered (within
the meaning of Section 280G(b)(4)(B) of the Code) in excess of the portion of the
“base amount” allocable to such Covered Payments, or such “parachute payments” are
otherwise not subject to such Excise Tax, and
(B) the value of any noncash benefits or any deferred payment or benefit shall
be determined by the Accountants in accordance with the principles of Section 280G
of the Code.
(A) Federal income taxes at the highest applicable marginal rate of Federal income
taxation for the calendar year in which the first amounts are to be paid hereunder,
and
(B) any applicable state and local income taxes at the highest applicable marginal
rate of taxation for such calendar year, net of the maximum reduction in Federal
incomes taxes which could be obtained from the deduction of such state or local
taxes if paid in such year;
provided, however, that the Executive may request that such determination be made based on his
individual tax circumstances, which shall govern such determination so long as the Executive
provides to the Accountants such information and documents as the Accountants shall reasonably
request to determine such individual circumstances.
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of a court or an Internal Revenue Service proceeding (a “Final Determination”) that,
notwithstanding the good faith of the Executive and the Company in applying the terms of this
Agreement, the aggregate “parachute payments” within the meaning of Section 280G of the Code paid
to the Executive or for his benefit are in an amount that would result in the Executive being
subject an Excise Tax, then the amount equal to such excess parachute payments shall be deemed for
all purposes to be a loan to the Executive made on the date of receipt of such excess payments,
which the Executive shall have an obligation to repay to the Company on demand, together with
interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code)
from the date of the payment hereunder to the date of repayment by the Executive. If this Section
7(e) is not applied to reduce the Executive’s entitlement under this Section 7 because the
Accountants determine that the Executive would not receive a greater net-after tax benefit by
applying this Section 7(e) and it is established pursuant to a Final Determination that,
notwithstanding the good faith of the Executive and the Company in applying the terms of this
Agreement, the Executive would have received a greater net after tax benefit by subjecting his
payments and benefits hereunder to the Payment Cap, then the aggregate “parachute payments” paid to
the Executive or for his benefit in excess of the Payment Cap shall be deemed for all purposes a
loan to the Executive made on the date of receipt of such excess payments, which the Executive
shall have an obligation to repay to the Company on demand, together with interest on such amount
at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the
payment hereunder to the date of repayment by the Executive. If the Executive receives reduced
payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final
Determination that the Executive could have received a greater amount without exceeding the Payment
Cap, then the Company shall promptly thereafter pay the Executive the aggregate additional amount
which could have been paid without exceeding the Payment Cap, together with interest on such amount
at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original
payment due date to the date of actual payment by the Company.
(f) If Termination of Employment Occurs After the Executive Has Reached Age 62.
Notwithstanding anything else to the contrary contained in this Section 7, if the Executive’s
employment with the Company terminates at any time during the 3 year period ending on the first day
of the month following the Executive’s sixty-fifth birthday (the “Normal Retirement Date”), and the
Executive would be entitled to receive severance benefits under paragraphs 7(c), then (i) the
multiplier in paragraph 7(c)(i)(B) shall not be 1.99, but shall be a number equal to 1.99 times
(x/1095), where x equals the number of days remaining until the Executive’s Normal Retirement Date,
and (ii) the End Date described in Section 7(c)(ii) shall not be the third anniversary of the Date
of Termination, but shall be the Executive’s Normal Retirement Date.
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Executive’s continuing or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company or any of its affiliated companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise prejudice such rights as the Executive may
have under any other agreements with the Company or any of its affiliated companies, including
employment agreements or stock option agreements. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program of the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be payable in accordance
with such plan or program.
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Company all secret or confidential information, knowledge or data relating to National, the Company
or any of their affiliated companies, and their respective businesses, (i) obtained by the
Executive during his employment by the Company or any of its affiliated companies and (ii) not
otherwise public knowledge (other than by reason of an unauthorized act by the Executive). After
termination of the Executive’s employment with the Company, the Executive shall not, without the
prior written consent of the Company, unless compelled pursuant to an order of a court or other
body having jurisdiction over such matter, communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by it.
(d) Non-disparagement. Regardless of whether the Executive has elected to be bound by Section
10(a), the Executive shall not publicly or privately disparage National or the Company, or any of
their subsidiaries or affiliates, including any aspect of their respective business, products,
employees, management or Board of Directors, in any manner which could adversely effect the
business of National, the Company or such subsidiaries or affiliates. Furthermore, the Executive
shall not, directly or indirectly, take any action or fail to take any action with the purpose of
interfering with, damaging or disrupting the assets or business operations or affairs of National
or the Company or any of their respective subsidiaries or affiliates.
National and the Company shall not publicly or privately disparage the Executive, either
personally or professionally. Nothing in this paragraph shall be construed to prevent any officer
of National or the Company from discussing the Executive’s performance internally in the ordinary
course of business.
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Section 10 These remedies are cumulative and are in addition to any other rights and remedies the
Company may have at law or in equity. In no event shall an asserted violation of the provisions of
Section 10 constitute a basis for deferring or withholding any amounts otherwise payable to the
Executive under this Agreement.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors. The Company shall require any successor to all or substantially all of the business
and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, by an 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 as the Company would be required to perform if no such succession had taken place.
(c) In the event the Executive ceases to be employed by the Company as a result of the
transfer of the Executive’s employment to National or to another wholly owned subsidiary of
National, for purposes of this Agreement, National or such other subsidiary, as the case may be,
will automatically be deemed to be the Company from and after the date of such transfer and shall
have the same rights, duties and obligations hereunder as the Company had immediately prior to such
transfer.
13. Miscellaneous. (a) Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, applied without reference to principles of
conflict of laws.
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and shall interpret this Agreement as an honorable engagement and not merely as a legal obligation.
Unless otherwise agreed by the parties, any such arbitration shall take place in a location
selected by the Company which is a convenient forum for such arbitration (taking into account the
availability of a sufficient pool of experienced arbitrators) and not more than 100 miles from the
Executive’s principal place of employment at the Effective Date (or at such other location as may
be agreed upon by the parties), and shall be conducted in accordance with the Rules of the AAA. In
the event of the occurrence of any proceeding (including the appeal of an arbitration decision)
between the Company or National and the Executive with respect to the subject matter of this
Agreement and the enforcement of rights hereunder, the Company or National shall reimburse the
Executive for all reasonable costs and expenses relating to such proceeding, including reasonable
attorneys’ fees and expenses, regardless of the final outcome, unless the arbitration panel
determines that recovery by the Executive of all or a part of such fees, costs and expenses would
be unjust. In no event shall the Executive reimburse the Company for any of the costs and expenses
relating to such litigation or other proceeding.
If to the Executive:
at the home address of the Executive noted
on the records of the Company
on the records of the Company
If to the Company:
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[Subsidiary Corporation]
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
Attention: Corporate Secretary
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
Attention: Corporate Secretary
If to National:
or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when actually received by the addressee.
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enforceable in a manner which provides the Company the maximum rights permitted at law.
(i) Waiver. Waiver by any party hereto of any breach or default by the other party of any of
the terms of this Agreement shall not operate as a waiver of any other breach or default, whether
similar to or different from the breach or default waived. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its or the Executive’s rights hereunder on any occasion or
series of occasions.
| [SUBSIDIARY CORPORATION] | ||||||
Attest: /s/
|
By: | |||||
Secretary
|
Title: | |||||
| NATIONAL FUEL GAS COMPANY | ||||||
Attest: /s/
|
By: | |||||
Secretary
|
Title: | |||||
| EXECUTIVE: | ||||||
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NATIONAL FUEL GAS COMPANY
EMPLOYMENT CONTINUATION
AND
NONCOMPETITION AGREEMENT
TABLE OF CONTENTS
| Page | ||||
1. Operation of Agreement |
2 | |||
a. Effective Date |
2 | |||
b. Termination of Employment Following a Potential
Change in Control |
2 | |||
2. Definitions |
2 | |||
a. Change in Control |
2 | |||
b. Potential Change in Control |
3 | |||
3. Employment Period |
3 | |||
4. Position and Duties |
3 | |||
5. Compensation |
4 | |||
a. Base Salary |
4 | |||
b. Annual Bonus |
4 | |||
c. Long-term Incentive Compensation Programs |
4 | |||
d. Benefit Plans |
4 | |||
e. Expenses |
5 | |||
f. Vacation and Fringe Benefits |
5 | |||
g. Indemnification |
5 | |||
6. Termination |
5 | |||
a. Death, Disability or Retirement |
5 | |||
b. Voluntary Termination |
5 | |||
c. Cause |
6 | |||
d. Good Reason |
6 | |||
e. Notice of Termination |
7 | |||
f. Date of Termination |
7 | |||
7. Obligations of the Company upon Termination |
7 | |||
a. Death or Disability |
7 | |||
b. Cause and Voluntary Termination |
7 | |||
c. Termination by the Company other than for Cause
and Termination by the Executive for Good Reason |
8 | |||
x. Xxxxxxxxx Benefits |
8 | |||
ii. Continuation of Welfare Benefits |
8 | |||
iii. Qualification for Early Retirement |
9 | |||
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| Page | ||||
d. Discharge of the Company’s Obligations |
10 | |||
e. Limit on Payments by the Company |
10 | |||
i. Application of Section 7(e) |
10 | |||
ii. Calculation of Benefits |
11 | |||
iii. Imposition of Payment Cap |
11 | |||
iv. Application of Section 280G |
11 | |||
v. Applicable Tax Rates |
12 | |||
vi. Adjustments in Respect of the Payment Cap |
12 | |||
f. If Termination of Employment Occurs After the Executive Has Reached Age
62 |
13 | |||
8. Non-exclusivity of Rights |
13 | |||
9. No Offset |
13 | |||
10. Non-Competition and Non-Solicitation |
14 | |||
a. Noncompete |
14 | |||
b. Non-Solicitation of Employees |
14 | |||
c. Confidential Information |
14 | |||
d. Non-disparagement |
14 | |||
e. Company Property |
15 | |||
f. Additional Payment |
15 | |||
11. Injunctive Relief and Other Remedies with Respect to
Covenants |
15 | |||
12. Successors |
15 | |||
13. Miscellaneous |
16 | |||
a. Applicable Law |
16 | |||
b. Arbitration |
16 | |||
c. Amendments |
16 | |||
d. Entire Agreement |
16 | |||
e. Notices |
17 | |||
f. Source of Payments |
17 | |||
g. Tax Withholding |
17 | |||
h. Severability; Reformation |
18 | |||
i. Waiver |
18 | |||
j. Counterparts |
18 | |||
k. Captions |
18 | |||
Signature Page |
18 | |||
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