Exhibit 10.01
EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "AGREEMENT") is dated this
September 26, 2005, between Xxxxxx CDT Inc. a Delaware corporation (the
"COMPANY"), and Xxxx Xxxxxx (the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company desires to employ Executive as President and Chief
Executive Officer of the Company and Executive desires to accept such
employment;
WHEREAS, the Company and Executive desire to enter into the Agreement to
set forth the terms of Executive's employment by the Company;
NOW THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. POSITION/DUTIES.
(a) Executive shall serve as the President and Chief Executive Officer
of the Company. As President and Chief Executive Officer of the Company,
Executive shall have active and general supervision and management over the
business and affairs of the Company and shall have full power and authority to
act for all purposes for and in the name of the Company in all matters except
where action of the Board of Directors of the Company (the "BOARD") is required
by law, the by-laws of the Company, or resolutions of the Board, and shall have
such other duties and responsibilities as the Board shall designate that are
consistent with Executive's position. Executive shall report exclusively to the
Board.
(b) Executive shall use Executive's best efforts to perform faithfully
and efficiently the duties and responsibilities assigned to Executive hereunder
and devote substantially all of Executive's business time to the performance of
Executive's duties with the Company; provided, the foregoing shall not prevent
Executive from (i) participating in charitable, civic, educational,
professional, community or industry affairs or, with prior approval of the
Board, serving on the board of directors or advisory boards of other companies
and (ii) managing Executive's and Executive's family's personal investments, in
all events so long as such activities do not materially interfere with the
performance of Executive's duties hereunder or create a potential business
conflict or the appearance thereof. If at any time service on any board of
directors or advisory board would, in the good faith judgment of the Board,
conflict with Executive's fiduciary duty to the Company or create any appearance
thereof, Executive shall, as soon as reasonably practicable considering any
fiduciary duty to the other such company, resign from such other board of
directors or advisory board after written notice of the conflict is received
from the Board.
(c) The Board shall take such action as may be necessary to appoint or
elect Executive as a member of the Board as soon as there is a legal vacancy on
the Board, but not to be effective prior to the Effective Date (defined below).
Thereafter, during the Term, the Board
shall nominate Executive for re-election as a member of the Board at the
expiration of Executive's then-current term.
(d) Executive further agrees to serve without additional compensation
as an officer and director of any of the Company's subsidiaries and agrees that
any amounts received from any such corporation may be offset against the amounts
due hereunder.
2. TERM OF AGREEMENT. The Agreement shall be effective on the date hereof
and the initial term of Executive's employment with the Company shall commence
on such date as the Board and Executive agree, but not later than October 31,
2005 (the "EFFECTIVE DATE"), and shall end on the third anniversary of the
Effective Date. The term of this Agreement shall be automatically extended
thereafter for successive one (1) year periods unless, at least ninety (90) days
prior to the end of the initial term of this Agreement or the then current
succeeding one-year extended term of this Agreement, the Company or Executive
has notified the other that the term hereunder shall terminate upon its
expiration date. The initial term of this Agreement, as it may be extended from
year to year thereafter, is herein referred to as the "TERM." The foregoing to
the contrary notwithstanding, upon the occurrence of a Change in Control
(defined below) at any time after the first anniversary of the Effective Date,
the term of this Agreement shall be extended to the second anniversary of the
date of the occurrence of such Change in Control and shall be subject to
expiration upon notice by Executive or the Company to the other party or to
automatic successive additional one-year periods thereafter, as the case may be,
in the manner provided above. If Executive remains employed by the Company
beyond the expiration of the Term, he shall be an employee at-will; except that
any provisions identified as surviving shall continue. In all events hereunder,
Executive's employment is subject to earlier termination pursuant to Section 7
hereof, and upon such earlier termination the Term shall be deemed to have
ended.
3. BASE SALARY. Commencing on the Effective Date, the Company shall pay
Executive a base salary (the "BASE SALARY") at an annual rate of $600,000,
payable in accordance with the regular payroll practices of the Company.
Executive's Base Salary shall be subject to annual review by the Board (or a
committee thereof) and may be increased from time to time by the Board. The base
salary as determined herein from time to time shall constitute "Base Salary" for
purposes of this Agreement.
4. ANNUAL BONUS. Commencing on the Effective Date, Executive shall be
eligible to participate in the Company's Management Incentive Plan and any
successor annual bonus plans. Executive shall have the opportunity to earn an
annual target bonus, measured against performance criteria to be determined by
the Board (or a committee thereof), of at least 100% of Base Salary. Executive's
2005 annual bonus shall not be less than $280,000.
5. EQUITY AWARDS.
(a) BUY-OUT OPTION GRANT. The Board or the committee of the Board (the
"COMMITTEE") appointed to administer the Company's 2001 Long-Term Performance
Incentive Plan as may be amended or replaced from time to time ("PLAN"), shall
award Executive as of the Effective Date, two options (collectively and
singularly, the "BUY-OUT OPTION") to purchase an aggregate number of shares of
the Company's common stock
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("COMMON STOCK") as equals the product of (i) the quotient of (A) $3,000,000
divided by (B) the Fair Market Value (as defined under the Plan) of Common Stock
on the Effective Date, multiplied by (ii) three (3). 100,000 shares of the
Buy-Out Option shall be granted in accordance with the form of award attached
hereto as Exhibit A. The balance of the shares of the Sign-on Option shall be
granted in accordance with the form of award attached hereto as Exhibit B.
(b) BUY-OUT RESTRICTED STOCK UNITS. The Board or the Committee shall
award Executive as of the Effective Date such number of restricted stock units
(the "BUY-OUT RSUS") as equals the quotient of (i) $3,000,000 divided by (ii)
the Fair Market Value of Common Stock on the Effective Date, in accordance with
the form of award attached hereto as Exhibit C.
(c) ANNUAL LONG-TERM INCENTIVE AWARDS.
(i) Commencing with annual awards granted to senior executives in
2006, Executive shall be eligible for annual long-term incentive awards
throughout the Term under such long-term incentive plans and programs as
may be in effect from time to time in accordance with the Company's
compensation practices and the terms and provisions of any such plans or
programs; provided, that Executive's participation in such plans and
programs shall be at a level and on terms and conditions consistent with
participation by other senior executives of the Company, as the Board or
the Committee shall determine in its sole discretion, with due
consideration of Executive's position and awards granted to other senior
executives of the Company. Notwithstanding, Executive shall be granted an
annual long-term incentive equity award during each of the 2006, 2007 and
2008 fiscal years having a value on the grant date of not less than
$2,500,000 (the "INITIAL TERM ANNUAL AWARDS"). The Initial Term Annual
Awards shall be granted in the form of stock options or restricted stock
units ("RSUS") or a combination thereof, unless Executive and the Committee
otherwise agree. The portion of such dollar value of each Initial Term
Annual Award granted as stock options and the portion granted as RSUs shall
be determined in the discretion of the Board or Committee, provided that
not less than one-half of such annual value shall be granted as RSUs.
(ii) For Initial Term Annual Awards of RSUs, the number of RSUs
granted shall be equal to the quotient of (A) the dollar value to be
awarded divided by (B) the Fair Market Value of a share of Common Stock on
the grant date. For Initial Term Annual Awards of stock options, the number
of options granted shall be equal to the quotient of (C) the dollar value
to be awarded divided by (D) the Black-Scholes value (or other option
valuation method) of one share of Common Stock on the grant date as
determined by the Committee or the Board for the valuation of stock option
grants to other senior executives during such fiscal year.
(iii) For Initial Term Annual Awards granted as stock options,
each such option share shall have an exercise price equal to the Fair
Market Value of one (1) share of Common Stock and shall vest and become
exercisable in three (3) equal installments on the first, second and third
anniversaries of the grant date, provided that Executive has been
continuously employed by the Company through each such vesting date for
such installment to so vest. Initial Term Annual Awards granted as RSUs
shall
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fully vest (A) on the third anniversary of the grant date or (B) if
Executive shall have attained stated performance objectives over a
three-year period, or (C) a combination of (A) and (B), and in no part
prior to such vesting date, provided that Executive shall have been
continuously employed by the Company through such vesting date, all as
shall be determined in the sole discretion of the Committee or the Board.
(iv) All Initial Term Annual Awards shall be granted pursuant to
the terms of the Plan as then in effect. In the event that, pursuant to
Plan limits, during any fiscal year the Board and Committee are not
authorized to grant a number of Initial Term Annual Award stock options or
RSUs (or both) payable in shares of stock, having an aggregate value of
$2,500,000, then such amount as is not so granted shall be awarded on
substantially the same terms as stock options and RSUs, but such awards
shall be payable to Executive in cash (e.g., as cash-based phantom stock
and stock appreciation rights), subject to applicable tax and other law.
The Company shall use its reasonable efforts to cause an amendment of the
Plan to be adopted and approved by shareholders at the 2006 annual meeting,
prior to the grant of the 2006 Initial Term Annual Awards, in compliance
with applicable law (including stock exchange listing requirements), as is
necessary to authorize the granting of the full value of Initial Term
Annual Awards payable in shares of stock under the Plan during each of the
2006, 2007 and 2008 fiscal years provided hereunder.
(v) Initial Term Annual Awards and all other long-term incentive
awards shall be granted pursuant to and, to the extent not contrary to the
terms of this Agreement, shall be subject to all of the terms and
conditions imposed upon such awards granted under the Plan.
(d) STOCK OWNERSHIP. Executive shall be subject to, and shall comply
with, the stock ownership guidelines of the Company as may be in effect from
time to time; provided, Executive's vested and unvested Buy-Out RSUs and
restricted stock units granted as Initial Term Annual Awards shall be credited
towards his stock ownership obligation, provided that Executive otherwise does
not dispose of any shares acquired following vesting of such Buy-Out RSUs and
restricted stock units.
6. EMPLOYEE BENEFITS. Commencing on the Effective Date:
(a) BENEFIT PLANS. Executive shall be entitled to participate in all
employee benefit plans of the Company including, but not limited to, equity,
pension, thrift, profit sharing, medical coverage, education, or other
retirement or welfare benefits that the Company has adopted or may adopt,
maintain or contribute to for the benefit of its senior executives in accordance
with the terms of such plans and programs.
(b) VACATION. Executive shall be entitled to annual paid vacation in
accordance with the Company's policy applicable to senior executives, but in no
event less than four (4) weeks per year (as prorated for partial years of
employment).
(c) BUSINESS AND ENTERTAINMENT EXPENSES. Upon presentation of
appropriate documentation, Executive shall be reimbursed in accordance with the
Company's
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expense reimbursement policy for all reasonable and necessary business expenses
incurred in connection with the performance of Executive's duties hereunder. The
Company shall reimburse Executive for his reasonable professional fees incurred
to negotiate and prepare this Agreement, not in excess of $7,500.
(d) RELOCATION. Executive will relocate his residence to the vicinity
of the Company's headquarters within a time frame mutually agreed upon between
Executive and the Board (the "RELOCATION PERIOD"), but not later than 120 days
following the Effective Date. Executive shall be entitled to relocation benefits
in accordance with the Company's relocation policy; provided, the Company shall
extend the period for which Executive shall be eligible for reimbursement of his
temporary housing expenses to 120 days.
(e) Certain Amendments. Nothing herein shall be construed to prevent
the Company from amending, altering, terminating or reducing any plans, benefits
or programs so long as Executive continues to receive compensation and benefits
consistent with Sections 4, 5, 6(b) and 6(d).
7. TERMINATION. Executive's employment and the Term shall terminate on the
first of the following to occur:
(a) DISABILITY. Upon written notice by the Company to Executive of
termination due to Disability, while Executive remains Disabled. For purposes of
this Agreement, "DISABILITY" shall have the meaning defined under the Company's
then-current long-term disability insurance plan in which Executive
participates.
(b) DEATH. Automatically on the date of death of Executive.
(c) CAUSE. Immediately upon written notice by the Company to Executive
of a termination of Executive's employment for Cause. "CAUSE" shall mean:
(i) Executive's willful and continued failure to perform
substantially his duties owed to the Company or its affiliates after a
written demand for substantial performance is delivered to him specifically
identifying the nature of such unacceptable performance and is not cured by
Executive within a reasonable period, not to exceed thirty (30) days;
(ii) Executive is convicted of (or pleads guilty or no contest
to) a felony or any crime involving moral turpitude;
(iii) Executive has engaged in conduct that constitutes gross
misconduct in the performance of his employment duties; or
(iv) Executive breaches any representation, warranty or covenant
under Section 22.
An act or omission by Executive shall not be "willful" if conducted in good
faith and with Executive's reasonable belief that such conduct is in the
best interests of the Company.
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(d) WITHOUT CAUSE. Upon written notice by the Company to Executive of
an involuntary termination of Executive's employment other than for Cause (and
other than due to his Disability).
(e) GOOD REASON. Upon written notice by Executive to the Company of a
voluntary termination of Executive's employment, at any time during a Protection
Period (defined below), for Good Reason. "GOOD REASON" shall mean, without the
express written consent of Executive, the occurrence of any of the following
events:
(i) Executive's Base Salary or annual target bonus opportunity is
reduced (other than any (A) reduction related to Company or individual
performance and (B) reduction in connection with any across-the-board
reduction of base salaries or target bonus opportunities of senior
executives of the Company);
(ii) Executive's duties or responsibilities are negatively and
materially changed in a manner inconsistent with Executive's position
(including status, offices, titles, and reporting responsibilities) or
authority;
(iii) The Company requires Executive's principal office to be
relocated more than 50 miles from its location as of the date immediately
preceding the Change in Control; or
(iv) Failure by the Company to elect or reelect Executive as a
member of the Board of Directors.
(f) VOLUNTARY TERMINATION FOR ANY REASON (WITHOUT GOOD REASON DURING A
PROTECTION PERIOD). Upon at least thirty (30) days' prior written notice by
Executive to the Company of Executive's voluntary termination of employment (i)
for any reason prior to or after a Protection Period or (ii) without Good Reason
during a Protection Period, in either case which the Company may, in its sole
discretion, make effective earlier than any termination date set forth in such
notice.
8. CONSEQUENCES OF TERMINATION. Any termination payments made and benefits
provided under this Agreement to Executive shall be in lieu of any termination
or severance payments or benefits for which Executive may be eligible under any
of the plans, policies or programs of the Company or its affiliates. Except to
the extent otherwise provided in this Agreement, all benefits, including,
without limitation, stock option grants, restricted stock units grants and other
awards under the Company's long-term incentive programs, shall be subject to the
terms and conditions of the plan or arrangement under which such benefits
accrue, are granted or are awarded. Upon termination of Executive's employment,
the following amounts and benefits shall be due to Executive:
(a) DEATH; DISABILITY. If Executive's employment terminates due to
Executive's death or Disability, then the Company shall pay or provide Executive
(or the legal representative of his estate in the case of his death) with:
(i) (A) any accrued and unpaid Base Salary through the date of
termination and any accrued and unused vacation in accordance with Company
policy;
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(B) reimbursement for any unreimbursed expenses, incurred and documented in
accordance with applicable Company policy, through the date of termination;
and (C) reimbursement for any unpaid relocation expenses in accordance with
Section 6(d) (collectively, "ACCRUED OBLIGATIONS"). Accrued Obligations
payable under clause (A) shall be payable within fifteen (15) days
following the date of termination, and under clauses (B) and (C) shall be
paid within fifteen (15) days after Executive shall have provided the
Company all required documentation therefor;
(ii) Any unpaid bonus earned with respect to any fiscal year
ending on or preceding the date of termination, payable when bonuses are
paid generally to senior executives for such year;
(iii) A pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on actual
performance under the applicable bonus plan and the fraction the numerator
of which is the number of days elapsed during the performance year through
the date of termination and the denominator of which is 365, which
pro-rated bonus shall be paid when bonuses are paid generally to senior
executives for such year;
(iv) Any disability insurance benefits, or life insurance
proceeds, as the case may be, as may be provided under the Company plans in
which Executive participates immediately prior to such termination; and
(v) Executive's Buy-Out Option and Buy-Out RSUs shall become
immediately fully vested, and Executive's Buy-Out Option shall be
exercisable for the lesser of one year following the date of termination or
the unexpired stated term of the grant. All of Executive's other unvested
long-term incentive awards (including Initial Term Annual Awards) granted
to Executive through the date of termination shall vest or be forfeited,
and any such vested awards granted as stock options shall be exercisable,
in accordance with the terms and conditions set forth in such awards.
(b) VOLUNTARY TERMINATION (INCLUDING VOLUNTARY TERMINATION WITHOUT
GOOD REASON DURING A PROTECTION PERIOD); INVOLUNTARY TERMINATION WITHOUT CAUSE
AT OR AFTER AGE 65; INVOLUNTARY TERMINATION FOR CAUSE.
(i) If Executive's employment should be terminated (i) by
Executive for any reason at any time other than during a Protection Period,
or (ii) by Executive without Good Reason during a Protection Period, then:
(A) the Company shall pay to Executive any Accrued Obligations in
accordance with Section 8(a)(i); (B) all unvested stock options, restricted
stock units and other unvested long-term incentive grants (including the
unvested portion of the Buy-Out Option, unvested Buy-Out RSUs and any
unvested Initial Term Annual Awards) shall be immediately forfeited and
cancelled; and (C) all vested stock options (including the vested portion
of the Buy-Out Option and any vested Initial Term Annual Awards granted as
stock options) shall be exercisable for ninety (90) days following such
termination.
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(ii) If Executive's employment is terminated by the Company other
than for Cause and other than for Disability at or after Executives'
attainment of age 65, (x) the Company shall pay to Executive any Accrued
Obligations and (y) Executive's long-term incentive grants shall vest or be
forfeited, and any stock options shall be exercisable, as set forth in the
applicable grant agreement, but not less than ninety (90) days.
(iii) If Executive's employment is terminated by the Company for
Cause, the Company shall pay to Executive any Accrued Obligations, and all
vested and unvested stock options, restricted stock units and other vested
and unvested long-term incentive grants (including the vested and unvested
portion of the Buy-Out Option, vested and unvested Buy-Out RSUs and any
vested and unvested Initial Term Annual Awards) shall be immediately
forfeited and cancelled.
(c) TERMINATION WITHOUT CAUSE. If at any time (A) prior to Executive's
attainment of age 65 and (B) other than during a Protection Period, Executive's
employment by the Company is terminated by the Company other than for Cause (and
other than a termination for Disability), then the Company shall pay or provide
Executive with:
(i) Executive's Accrued Obligations, payable in accordance with
Section 8(a)(i);
(ii) Any unpaid bonus earned with respect to any fiscal year
ending on or preceding the date of termination, payable when bonuses are
paid generally to senior executives for such year;
(iii) A pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on actual
performance under the applicable bonus plan and the fraction the numerator
of which is the number of days elapsed during the performance year through
the date of termination and the denominator of which is 365, which
pro-rated bonus shall be paid when bonuses are paid generally to senior
executives for such year;
(iv) Severance payments in the aggregate amount equal to the
product of (A) the sum of (1) Executive's then Base Salary plus (2) his
annual target bonus multiplied by (B) one and one-half (1.5), which amount
shall be payable to Executive in equal payroll installments over a period
of eighteen (18) months;
(v) Subject to Executive's continued co-payment of premiums,
continued participation for eighteen (18) months in the Company's medical
benefits plan which covers Executive (and his eligible dependents) upon the
same terms and conditions (except for the requirement of Executive's
continued employment) in effect for active employees of the Company. In the
event Executive obtains other employment that offers substantially similar
or more favorable medical benefits, such continuation of coverage by the
Company under this subsection shall immediately cease. The continuation of
health benefits under this subsection shall reduce the period of coverage
and count
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against Executive's right to healthcare continuation benefits under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"); and
(vi) Executive's Buy-Out Option and Buy-Out RSUs shall become
immediately fully vested, and Executive's Buy-Out Option shall be
exercisable for the lesser of one year following the date of termination or
the unexpired stated term of the grant. All of Executive's other unvested
long-term incentive awards (including unvested Initial Term Annual Awards)
granted to Executive through the date of termination shall vest or be
forfeited, and any such vested awards granted as stock options shall be
exercisable, in accordance with the terms and conditions set forth in such
awards.
(d) COMPANY NON-RENEWAL OF TERM. In the event that the Term expires at
any time prior to the fifth anniversary of the Effective Date (without regard
for a termination of Executive's employment upon such expiration or a
continuation of Executive's employment at-will following such expiration), as a
result of a Company notice to Executive that the Term shall not be extended
beyond such expiration date, the Buy-Out RSUs shall become immediately fully
vested upon such expiration date.
9. CONDITIONS. Any payments or benefits made or provided to Executive
pursuant to any subsection of Section 8 (provided, in the case of Section 8(d),
only if Executive's employment then terminates), or Section 10(c) and Section
10(d), other than Accrued Obligations, are subject to Executive's:
(a) compliance with the provisions of Section 11 hereof;
(b) delivery to the Company of an executed Agreement and General
Release (the "GENERAL RELEASE"), which shall be substantially in the form
attached hereto as Exhibit D within twenty-one (21) days after presentation
thereof by the Company to Executive; and
(c) delivery to the Company of a resignation from all offices,
directorships and fiduciary positions with the Company, its affiliates and
employee benefit plans.
Notwithstanding the due date of any post-employment payments, any amounts due
following a termination under this Agreement (other than Accrued Obligations)
shall not be payable until after the expiration of any statutory revocation
period applicable to the General Release without Executive having revoked such
General Release, and, subject to the provisions of Section 20 hereof, any such
amounts shall be paid to Executive within thirty (30) days thereafter.
Notwithstanding, Executive shall be entitled to any Accrued Obligations, payable
without regard for the conditions of this Section 9.
10. CHANGE IN CONTROL; EXCISE TAX.
(a) CHANGE IN CONTROL. A "CHANGE IN CONTROL" of the Company shall be
deemed to have occurred if any of the events set forth in any one of the
following subparagraphs shall occur:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as
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amended (the "EXCHANGE ACT")) (a "PERSON") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than
50% of either (i) the then-outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined
voting power of the then-outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "OUTSTANDING
COMPANY VOTING SECURITIES"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a Change of
Control: (1) any acquisition directly from the Company, (2) any acquisition
by the Company, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses (1) and (2) of
subsection (c) of this definition; or
(ii) individuals who, as of the date hereof, constitute the Board
(the "INCUMBENT BOARD") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were 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
a Person other than the Board; or
(iii) consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of
the Company (a "BUSINESS COMBINATION"), in each case, unless, following
such Business Combination, (1) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly
or indirectly, more than 50% of, respectively, the then-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 Business
Combination (including, without limitation, a corporation 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) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, and (2) at least
a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
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(b) BUY-OUT RSU AND BUY-OUT OPTION GRANTS. Upon the occurrence of a
Change in Control of the Company, the Buy-Out RSUs and the Buy-Out Option, to
the extent not vested and exercised by the Executive, shall immediately vest in
full, the Buy-Out RSUs shall be immediately payable to Executive (unless payment
shall be deferred in accordance with the terms thereof), and the Buy-Out Option
shall be exercisable.
(c) QUALIFYING TERMINATION. If, prior to Executive's attainment of age
65, Executive's employment is involuntarily terminated by the Company without
Cause (and other than due to his Disability) or is voluntarily terminated by
Executive for Good Reason, in either case only during the period commencing on
the occurrence of a Change in Control of the Company and ending on the second
anniversary of date of the Change in Control ("PROTECTION PERIOD"), then the
Company shall pay or provide Executive with:
(i) Executive's Accrued Obligations, payable in accordance with
Section 8(a)(i);
(ii) Any unpaid bonus earned with respect to any fiscal year
ending on or preceding the date of termination, payable when bonuses are
paid generally to senior executives for such year;
(iii) A pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on actual
performance under the applicable bonus plan and the fraction the numerator
of which is the number of days elapsed during the performance year through
the date of termination and the denominator of which is 365, which
pro-rated bonus shall be paid when bonuses are paid generally to senior
executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal
to the product of (A) the sum of (1) Executive's then Base Salary plus (2)
his annual target bonus multiplied by (B) two (2);
(v) Subject to Executive's continued co-payment of premiums,
continued participation for two (2) years in the Company's medical benefits
plan which covers Executive (and his eligible dependents) upon the same
terms and conditions (except for the requirements of Executive's continued
employment) in effect for active employees of the Company. In the event
Executive obtains other employment that offers substantially similar or
more favorable medical benefits, such continuation of coverage by the
Company under this subsection shall immediately cease. The continuation of
health benefits under this subsection shall reduce the period of coverage
and count against Executive's right to healthcare continuation benefits
under COBRA; and
(vi) All of Executive's unvested stock option, restricted stock
unit and other long-term incentive equity awards (including any Initial
Term Annual Awards) shall become immediately fully vested, and such stock
option awards shall be exercisable for the lesser of one year following the
date of termination or the unexpired stated term of the grant.
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(d) EXCISE TAX.
(i) If it is determined that any amount, right or benefit paid or
payable (or otherwise provided or to be provided) to the Executive by the
Company or any of its affiliates under this Agreement or any other plan,
program or arrangement under which Executive participates or is a party,
other than amounts payable under this Section 10(d), (collectively, the
"PAYMENTS"), would constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
("CODE"), subject to the excise tax imposed by Section 4999 of the Code, as
amended from time to time (the "EXCISE TAX"), and the present value of such
Payments (calculated in a manner consistent with that set forth in the
applicable regulations promulgated under Section 280G of the Code) is equal
to or less than 110% of the threshold at which such amount becomes an
"excess parachute payment," then the amount of the Payments payable to the
Executive under this Agreement shall be reduced (a "REDUCTION") to the
extent necessary so that no portion of such Payments payable to the
Executive is subject to the Excise Tax.
(ii) In the event it shall be determined that the amount of the
Payments payable to the Executive is more than 110% greater than the
threshold at which such amount becomes an "excess parachute payment," then
the Executive shall be entitled to receive an additional payment from the
Company (a "GROSS-UP PAYMENT") in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income and
employment taxes and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(iii) All determinations required to be made under this Section
10(d), including whether and when a Gross-Up Payment or a Reduction is
required, the amount of such Gross-Up Payment or Reduction and the
assumptions to be utilized in arriving at such determination, shall be made
by an independent, nationally recognized accounting firm mutually
acceptable to the Company and the Executive (the "AUDITOR"); provided that
in the event a Reduction is determined to be required, the Executive may
determine which Payments shall be reduced in order to comply with the
provisions of this Section 10(d). The Auditor shall promptly provide
detailed supporting calculations to both the Company and Executive
following any determination that a Reduction or Gross-Up Payment is
necessary. All fees and expenses of the Auditor shall be paid by the
Company. Any Gross-Up Payment, as determined pursuant to this Section
10(d), shall be paid by the Company to the Executive within five (5) days
of the receipt of the Auditor's determination. All determinations made by
the Auditor shall be binding upon the Company and the Executive; provided
that if, notwithstanding the Auditor's initial determination, the Internal
Revenue Service (or other applicable taxing authority) determines that an
additional Excise Tax is due with respect to the Payments, then the Auditor
shall recalculate the amount of the Gross-Up Payment or Reduction Amount,
if applicable, based upon the determinations made by the Internal Revenue
Service (or other applicable taxing authority) after taking into account
any additional interest and penalties (the "RECALCULATED AMOUNT") and the
Company shall pay to the Executive the
12
excess of the Recalculated Amount over the Gross-Up Payment initially paid
to the Executive or the amount of the Payments after the Reduction, as
applicable, within five (5) days of the receipt of the Auditor's
recalculation the Gross-Up Payment.
11. EXECUTIVE COVENANTS.
(a) CONFIDENTIALITY. Executive agrees that Executive shall not,
commencing on the date hereof and at all times thereafter, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of Executive's employment and for the benefit
of the Company, any nonpublic, proprietary or confidential information,
knowledge or data relating to the Company, any of its subsidiaries, affiliated
companies or businesses, which shall have been obtained by Executive during
Executive's employment by the Company. The foregoing shall not apply to
information that (i) was known to the public prior to its disclosure to
Executive; (ii) becomes known to the public subsequent to disclosure to
Executive through no wrongful act of Executive or any representative of
Executive; or (iii) Executive is required to disclose by applicable law,
regulation or legal process (provided that Executive provides the Company with
prior notice of the contemplated disclosure and reasonably cooperates with the
Company at its expense in seeking a protective order or other appropriate
protection of such information). Notwithstanding clauses (i) and (ii) of the
preceding sentence, Executive's obligation to maintain such disclosed
information in confidence shall not terminate where only portions of the
information are in the public domain.
(b) NONSOLICITATION. Commencing on the date hereof, and continuing
during Executive's employment with the Company and for the eighteen (18) month
period following termination of Executive's employment for any reason (a
twenty-four (24) month post-employment period in the event of a termination of
Executive's employment for any reason at any time during a Protection Period)
("RESTRICTED PERIOD"), Executive agrees that Executive shall not, without the
prior written consent of the Company, directly or indirectly, individually or on
behalf of any other person, firm, corporation or other entity: (i) solicit,
recruit or employ (whether as an employee, officer, director, agent, consultant
or independent contractor) any person who was or is at any time during the six
(6) months preceding Executive's termination of employment an employee,
representative, officer or director of the Company; (ii) take any action to
encourage or induce any employee, representative, officer or director of the
Company to cease their relationship with the Company for any reason; or (iii)
knowingly solicit, aid or induce any customer of the Company or any of its
subsidiaries or affiliates to purchase goods or services then sold by the
Company or any of its subsidiaries or affiliates from another person, firm,
corporation or other entity or assist or aid any other persons or entity in
identifying or soliciting any such customer.
(c) NONCOMPETITION. Executive acknowledges that Executive performs
services of a unique nature for the Company that are irreplaceable, and that
Executive's performance of such services to a competing business will result in
irreparable harm to the Company. Accordingly, during the Restricted Period,
Executive agrees that Executive shall not, directly or indirectly, own, manage,
operate, control, be employed by (whether as an employee, consultant,
independent contractor or otherwise, and whether or not for compensation) or
render services to any person, firm, corporation or other entity, in whatever
form, engaged in any business of the same type as any business in which the
Company or any of its subsidiaries or
13
affiliates is engaged on the date of termination or in which they have proposed,
on or prior to such date, to be engaged in on or after such date at any time
during the twelve (12)-month period ending with the date of termination, in any
locale of any country in which the Company conducts business. This Section 11(c)
shall not prevent Executive from owning not more than two percent (2%) of the
total shares of all classes of stock outstanding of any publicly held entity
engaged in such business.
(d) NONDISPARAGEMENT. Each of Executive and the Company (for purposes
hereof, "the Company" shall mean only (i) the Company by press release or other
formally released announcement and (ii) the executive officers and directors
thereof and not any other employees) agrees not to make any public statements
that disparage the other party, or in the case of the Company, its respective
affiliates, employees, officers, directors, products or services.
Notwithstanding the foregoing, statements made in the course of sworn testimony
in administrative, judicial or arbitral proceedings (including, without
limitation, depositions in connection with such proceedings) shall not be
subject to this Section 11(d). Executive's provision shall also not cover normal
competitive statements which do not cite Executive's employment by the Company.
(e) RETURN OF COMPANY PROPERTY AND RECORDS. Executive agrees that upon
termination of Executive's employment, for any cause whatsoever, Executive will
surrender to the Company in good condition (reasonable wear and tear excepted)
all property and equipment belonging to the Company and all records kept by
Executive containing the names, addresses or any other information with regard
to customers or customer contacts of the Company, or concerning any proprietary
or confidential information of the Company or any operational, financial or
other documents given to Executive during Executive's employment with the
Company.
(f) COOPERATION. Executive agrees that, following termination of
Executive's employment for any reason, Executive shall upon reasonable advance
notice, and to the extent it does not interfere with previously scheduled travel
plans and does not unreasonably interfere with other business activities or
employment obligations, assist and cooperate with the Company with regard to any
matter or project in which Executive was involved during Executive's employment,
including any litigation. The Company shall compensate Executive for reasonable
expenses incurred in connection with such cooperation and assistance.
(g) ASSIGNMENT OF INVENTIONS. Executive will promptly communicate and
disclose in writing to the Company all inventions and developments including
software, whether patentable or not, as well as patents and patent applications
(hereinafter collectively called "INVENTIONS"), made, conceived, developed, or
purchased by Executive, or under which Executive acquires the right to grant
licenses or to become licensed, alone or jointly with others, which have arisen
or jointly with others, which have arisen or may arise out of Executive's
employment, or relate to any matters pertaining to, or useful in connection
therewith, the business or affairs of the Company or any of its subsidiaries.
Included herein as if developed during the employment period is any specialized
equipment and software developed for use in the business of the Company. All of
Executive's right, title and interest in, to, and under all such Inventions,
licenses, and right to grant licenses shall be the sole property of the Company.
Any such Inventions disclosed to anyone by Executive within one (1) year after
the termination of
14
employment for any cause whatsoever shall be deemed to have been made or
conceived by Executive during the Term. As to all such Inventions, Executive
will, upon request of the Company execute all documents which the Company deems
necessary or proper to enable it to establish title to such Inventions or other
rights, and to enable it to file and prosecute applications for letters patent
of the United States and any foreign country; and do all things (including the
giving of evidence in suits and other proceedings) which the Company deems
necessary or proper to obtain, maintain, or assert patents for any and all such
Inventions or to assert its rights in any Inventions not patented.
(h) EQUITABLE RELIEF AND OTHER REMEDIES. The parties acknowledge and
agree that the other party's remedies at law for a breach or threatened breach
of any of the provisions of this Section 11 would be inadequate and, in
recognition of this fact, the parties agree that, in the event of such a breach
or threatened breach, in addition to any remedies at law, the other party,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
(i) REFORMATION. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 11 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
(j) SURVIVAL OF PROVISIONS. The obligations of Executive set forth in
this Section 11 shall survive the termination of Executive's employment by the
Company and the termination or expiration of this Agreement and shall be fully
enforceable thereafter.
12. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto. Except
as provided in Section 12(b) below, no party may assign or delegate any rights
or obligations hereunder without first obtaining the written consent of the
other party hereto.
(b) The Company shall assign this Agreement to any successor to all or
substantially all of the business or assets of the Company provided that the
Company shall require such successor to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place and shall
deliver a copy of such assignment to Executive.
13. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given (a) on the date of delivery if delivered by hand,
(b) on the first business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (d) on the fourth business day
following the date delivered or mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
15
If to Executive:
At the address shown on the records of the Company
If to the Company:
Xxxxxx CDT Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
14. SECTION HEADINGS; INCONSISTENCY. The section headings used in this
Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement. In the event of any
inconsistency between this Agreement and any other agreement (including but not
limited to any option, long-term incentive or other equity award agreement),
plan, program, policy or practice of the Company, the terms of this Agreement
shall control.
15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity of unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
16. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement, other than injunctive relief under Section 11(h) hereof or
damages for breach of Section 11, shall be settled exclusively by arbitration,
conducted before a single arbitrator in St. Louis, Missouri, administered by the
American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules then in effect. The single arbitrator shall be selected by the
mutual agreement of the Company and Executive, unless the parties are unable to
agree to an arbitrator, in which case, the arbitrator will be selected under the
procedures of the AAA. The arbitrator will have the authority to permit
discovery and to follow the procedures that Executive or she determines to be
appropriate. The arbitrator will have no power to award consequential (including
lost profits), punitive or exemplary damages. The decision of the arbitrator
will be final and binding upon the parties hereto. Judgment may be entered on
the arbitrator's award in any court having jurisdiction. Each party shall bear
its own legal fees and costs and equally divide the forum fees and cost of the
arbitrator.
17. INDEMNIFICATION; LIABILITY INSURANCE. The Company and Executive shall
enter into the Company's standard form of indemnification agreement governing
his conduct as an officer and director of the Company.
18. AMENDMENTS; WAIVER. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Executive and such officer or director as may be
designated by the Board. No waiver
16
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
19. ENTIRE AGREEMENT; MISCELLANEOUS. This Agreement together with all
exhibits hereto sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware without regard to its
conflicts of law principles. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. The use of the word
"including" in this Agreement shall be by way of example rather than by
limitation and of the word "or" shall be inclusive and not exclusive.
20. CODE SECTION 409A. It is intended that any amounts payable under this
Agreement and the Company's and Executive's exercise of authority or discretion
hereunder shall comply with the provisions of Section 409A of the Code and the
treasury regulations relating thereto so as not to subject Executive to the
payment of interest and tax penalty which may be imposed under Section 409A. In
furtherance of this interest, anything to the contrary herein notwithstanding,
no amounts shall be payable to Executive before such time as such payment fully
complies with the provisions of Section 409A and, to the extent that any
regulations or other guidance issued under Section 409A after the date of this
Agreement would result in Executive being subject to payment of interest and tax
penalty under Section 409A, the parties agree to amend this Agreement in order
to bring this Agreement into compliance with Section 409A.
21. FULL SETTLEMENT. Except as set forth in this Agreement, the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including without limitation, set-off, counterclaim, recoupment, defense or
other claim, right or action which the Company may have against Executive or
others, except to the extent any amounts are due the Company or its subsidiaries
or affiliates pursuant to a judgment against Executive. In no event shall
Executive be obliged to seek other employment or take any other action by way of
mitigation of the amounts payable to Executive under any of the provisions of
this Agreement, nor shall the amount of any payment hereunder be reduced by any
compensation earned by Executive as a result of employment by another employer,
except as set forth in this Agreement.
22. REPRESENTATION. Executive represents to the Company that Executive has
a Noncompetition Agreement with his former employer ("NONCOMPETITION
AGREEMENT"), a copy of which has been provided by Executive to the Company.
Executive represents and warrants that to the best of his knowledge and belief
that the Noncompetition Agreement does not interfere with his legal right to
enter into this Agreement and to perform all of the obligations on Executive's
part to be performed hereunder in accordance with its terms. Executive further
represents, warrants and covenants that he shall comply by all covenants and
restrictions that
17
apply to Executive under the Noncompetition Agreement. Executive further
represents that he is not a party to any other agreement or understanding,
written or oral, which could prevent Executive from entering into this Agreement
or performing all of Executive's obligations hereunder.
In the event that Executive is sued by his former employer based on a claim
or claims that his employment by the Company violates the specific restriction
against performing services for a competitor under the Noncompetition Agreement,
the Company agrees to defend, indemnify and hold harmless Executive from damages
or amounts paid in settlement to his former employer and Executive's reasonable
attorneys' fees (such counsel to be approved by the Company in its reasonable
discretion) incurred in connection with any such action; provided (a) such
indemnification shall cease, and all amounts paid to Executive shall be
immediately refunded to the Company and Executive shall immediately forfeit all
right to reimbursement of all amounts incurred by Executive pursuant to such
indemnification, in the event that Executive breaches any other covenant under
the Noncompetition Agreement (including, without limitation, covenants against
soliciting customers or employees and nondisclosure), (b) a termination of
Executive's employment by the Company following the issuance of a permanent
injunction granted to such former employer for a breach of any provision of the
Noncompetition Agreement, or an injunction which injunction prevents Executive
from performing his duties hereunder for more than 90 days, shall be deemed to
be a voluntary termination by Executive (without Good Reason, if applicable)
hereunder, and (c) the Company shall direct and control any such litigation in
which the Company also is a party.
23. WITHHOLDING. The Company may withhold from any and all amounts payable
under this Agreement such federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
24. AGREEMENT OF THE PARTIES. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto. Neither Executive nor the Company shall be entitled to any presumption
in connection with any determination made hereunder in connection with any
arbitration, judicial or administrative proceeding relating to or arising under
this Agreement.
25. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instruments.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
XXXXXX CDT INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Its: Director
/s/ XXXX XXXXXX
----------------------------------------
Xxxx Xxxxxx
19
EXHIBIT A
BUY-OUT STOCK OPTION XXXXX
XXXXXX CDT INC.
2001 LONG-TERM PERFORMANCE INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is effective October __, 2005 (the "GRANT DATE") by and
between Xxxxxx CDT Inc., a Delaware corporation (the "COMPANY") and Xxxx Xxxxxx
("OPTIONEE").
IT IS HEREBY AGREED:
1. GRANT OF OPTION. The Company hereby grants to Optionee a non-qualified
stock option ("OPTION") to purchase 100,000 Common Shares, at the price of
$__.__ per share, which price is the Fair Market Value of one share of Common
Shares on the date on which the Option is granted. The Option is granted,
pursuant to the Executive Employment Agreement between Optionee and the Company,
dated September 26, 2005 ("EMPLOYMENT AGREEMENT"), under the Company's 2001
Long-Term Performance Incentive Plan (the "PLAN"), and is subject to the terms
and conditions of the Plan. To the extent any terms and conditions herein
conflict with the terms and conditions of the Plan, the terms and conditions of
the Plan shall control. Capitalized terms used in this Agreement without further
definition shall have the same meanings given to such terms in the Plan. Copies
of the Plan are available from the Secretary of the Company. "COMMON SHARES"
shall mean the Company's common stock, having a par value of $0.01 per share, as
defined in the Plan.
2. VESTING, EXPIRATION AND TERMINATION OF OPTION.
(a) The Option shall have a term expiring on the tenth anniversary of
the Grant Date ("TERM"), or earlier pursuant to Section 2(c).
(b) Subject to Section 2(c) and 2(d) hereof, the Option shall be
vested and exercisable pursuant to the following schedule, provided that the
Optionee has been in the continuous employ of the Company or its subsidiaries
through the periods set forth:
VESTING DATE PORTION OF OPTION THAT IS VESTED AND EXERCISABLE
------------ ------------------------------------------------
First Anniversary of A Total of One-Third of the Option
the Grant Date
Second Anniversary of A Total of Two-Thirds of the Option
the Grant Date
Third Anniversary of A Total of Three-Thirds of the Option
the Grant Date
(c) Upon the occurrence of a Change in Control of the Company (as
defined in Section 10(a) of the Employment Agreement), the unvested portion of
the Option shall immediately vest in full and shall be exercisable.
(d) If Optionee's employment terminates during the Term, then
Optionee's vesting and exercise rights under the Option shall be as set forth at
Section 8 (vesting and exercise) or Section 10(c) (exercise) of the Employment
Agreement, as the case may be.
3. HOW TO EXERCISE. Optionee may exercise the Option by following the
procedures the Company has in place at the time of exercise. Optionee shall
contact Mellon Investor Services at 000-000-0000 (U.S. callers) or 000-000-0000
(International callers) if Optionee has questions regarding exercising options.
To exercise the Option, in whole or in part, by a person other than Optionee,
the Company must have appropriate documentation evidencing the rights of
Optionee's beneficiary(s). The Company will then notify Mellon to allow
beneficiary(s) to exercise the Option. Beneficiary(s) will be able to exercise
the Option by contacting a Mellon Call Service Representative at the above
referenced telephone numbers. Payment of the full purchase price (including any
related tax obligations) may be made (i) in cash, (ii) in shares of the
Company's common stock that Optionee has held for at least six months (valued at
the average of the high and the low price of such common stock, as traded on the
New York Stock Exchange ("NYSE"), or a replacement national securities exchange,
on the date of exercise of the Option), or (iii) to the extent permitted by
applicable law, as a cashless exercise (i.e., the option exercise price is
advanced by a broker and tendered to the Company), or a combination of the
foregoing, or such other consideration as the Compensation Committee may deem
appropriate, all as determined by and subject to the terms, conditions and
restrictions established by the Compensation Committee. Upon the proper exercise
of the Option, the Company shall issue in Optionee's name and deliver to
Optionee (or to Optionee 's permitted representative and in their name upon
Optionee's death, above), in either book entry or certificate form (at the
discretion of the Company) through the Company's transfer agent, the number of
shares acquired through the exercise. Optionee will not have any rights as a
shareholder of the Company with respect to any unexercised portion of the
Option.
4. SECURITIES LAWS. The Option granted under this Agreement is subject to
the Company's registering the Common Shares under applicable securities laws.
Optionee's Option shall not be exercised if the exercise would violate:
(a) Any applicable state securities law;
(b) Any applicable registration or other requirements under the
Securities Act of 1933, as amended (the "ACT") the Securities Exchange Act of
1934, as amended, or the listing requirements of the NYSE; or
(c) Any applicable legal requirements of any governmental authority.
Furthermore, if a registration statement with respect to the Common Shares
to be issued upon the exercise of this Option is not in effect or if counsel for
the Company deems it necessary or desirable to avoid a possible violation of the
Act, the Company may require, as a condition to its issuance and delivery of
certificates for the Shares (or recording a book-entry of the issuance
A-2
of shares), the delivery to the Company of a commitment in writing by the person
exercising the option rights that at the time of such exercise it is his
intention to acquire such Common Shares for his own account for investment only
and not with a view to, or for resale in connection with, the distribution
thereof. Such person understands that the Common Shares may be "restricted
securities" as defined in Rule 144 issued under the Act and that any resale,
transfer or other disposition of the Shares will be accomplished only in
compliance with Rule 144 of the Act, or other or subsequent applicable rules and
regulations under the Act. The Company may place on the certificates evidencing
the Shares an appropriate legend reflecting such commitment and the Company may
refuse to permit transfer of the certificates until it has been furnished with
evidence satisfactory to it that no violation of the Act (or the rules and
regulations under the Act) would be involved in such transfer.
5. UNDERSTANDING. Nothing in these terms and conditions will limit or
restrict any right that the Company may have with respect to Optionee's
employment, subject to the Employment Agreement.
6. NON-ASSIGNMENT OF RIGHTS. Optionee may not assign or transfer any
portion or all of the Options or rights granted thereunder except by will or by
the laws of descent and distribution.
7. EMPLOYMENT BY COMPANY. For purposes of this Agreement, employment by a
parent or subsidiary of or a successor to the Company shall be considered
employment by the Company.
8. PLAN ADMINISTRATOR. The Compensation Committee of the Company has
authority, subject to the applicable plan provisions, (i) to construe this
Agreement and the Plan, (ii) to establish, amend and rescind rules and
regulations relating to the Plans, (iii) to modify these terms and conditions
(not otherwise adverse to Optionee), and (iv) to make all other determinations
that in the judgment of the Compensation Committee are necessary or desirable
for the administration of the Plan. The Compensation Committee may correct any
defect or supply any omission or reconcile any inconsistency in the plans or in
these terms and conditions in the manner and to the extent it shall deem
expedient to carry out the intent of the plans. All action by the Compensation
Committee under the provisions of this paragraph shall be conclusive for all
purposes.
9. INCORPORATION OF PLAN. The Options granted herein is subject to the
provisions of the Plan, which are incorporated by reference into these terms and
conditions.
10. INCONSISTENCY. In the event of any inconsistency between this Agreement
and the Employment Agreement, the Employment Agreement shall control.
11. CHOICE OF LAW. These terms and conditions shall be construed and
enforced in accordance with Delaware law, other than any choice of law
provisions calling for the application of the laws of another state.
A-3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
XXXXXX CDT INC.
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
----------------------------------------
Xxxx Xxxxxx
A-4
EXHIBIT B
BUY-OUT STOCK OPTION XXXXX
XXXXXX CDT INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is effective October __, 2005 (the "GRANT DATE") by and
between Xxxxxx CDT Inc., a Delaware corporation (the "COMPANY") and Xxxx Xxxxxx
("OPTIONEE").
IT IS HEREBY AGREED:
1. GRANT OF OPTION. The Company hereby grants to Optionee a non-qualified
stock option ("OPTION") to purchase _______________ Common Shares, at the price
of $__.__ per share, which price is the Fair Market Value of one share of Common
Shares on the date on which the Option is granted. The Option is granted,
pursuant to the Executive Employment Agreement between Optionee and the Company,
dated September 26, 2005 ("EMPLOYMENT AGREEMENT"). This Option is not granted
under the Company's 2001 Long-Term Performance Incentive Plan (the "PLAN");
provided, that for all purposes hereunder, this Option shall be subject to the
terms and conditions of the Plan as if it had been granted under the Plan.
Capitalized terms used in this Agreement without further definition shall have
the same meanings given to such terms in the Plan. Copies of the Plan are
available from the Secretary of the Company. "COMMON SHARES" shall mean the
Company's common stock, having a par value of $0.01 per share, as defined in the
Plan.
2. VESTING, EXPIRATION AND TERMINATION OF OPTION.
(a) The Option shall have a term expiring on the tenth anniversary of
the Grant Date ("TERM"), or earlier pursuant to Section 2(c).
(b) Subject to Section 2(c) and 2(d) hereof, the Option shall be
vested and exercisable pursuant to the following schedule, provided that the
Optionee has been in the continuous employ of the Company or its subsidiaries
through the periods set forth:
VESTING DATE PORTION OF OPTION THAT IS VESTED AND EXERCISABLE
------------ ------------------------------------------------
First Anniversary of A Total of One-Third of the Option
the Grant Date
Second Anniversary of A Total of Two-Thirds of the Option
the Grant Date
Third Anniversary of A Total of Three-Thirds of the Option
the Grant Date
(c) Upon the occurrence of a Change in Control of the Company (as
defined in Section 10(a) of the Employment Agreement), the unvested portion of
the Option shall immediately vest in full and shall be exercisable.
(d) If Optionee's employment terminates during the Term, then
Optionee's vesting and exercise rights under the Option shall be as set forth at
Section 8 (vesting and exercise) or Section 10(c) (exercise) of the Employment
Agreement, as the case may be.
3. HOW TO EXERCISE. Optionee may exercise the Option by following the
procedures the Company has in place at the time of exercise. Optionee shall
contact Mellon Investor Services at 000-000-0000 (U.S. callers) or 000-000-0000
(International callers) if Optionee has questions regarding exercising options.
To exercise the Option, in whole or in part, by a person other than Optionee,
the Company must have appropriate documentation evidencing the rights of
Optionee's beneficiary(s). The Company will then notify Mellon to allow
beneficiary(s) to exercise the Option. Beneficiary(s) will be able to exercise
the Option by contacting a Mellon Call Service Representative at the above
referenced telephone numbers. Payment of the full purchase price (including any
related tax obligations) may be made (i) in cash, (ii) in shares of the
Company's common stock that Optionee has held for at least six months (valued at
the average of the high and the low price of such common stock, as traded on the
New York Stock Exchange ("NYSE"), or a replacement national securities exchange,
on the date of exercise of the Option), or (iii) to the extent permitted by
applicable law, as a cashless exercise (i.e., the option exercise price is
advanced by a broker and tendered to the Company), or a combination of the
foregoing, or such other consideration as the Compensation Committee may deem
appropriate, all as determined by and subject to the terms, conditions and
restrictions established by the Compensation Committee. Upon the proper exercise
of the Option, the Company shall issue in Optionee's name and deliver to
Optionee (or to Optionee 's permitted representative and in their name upon
Optionee's death, above), in either book entry or certificate form (at the
discretion of the Company) through the Company's transfer agent, the number of
shares acquired through the exercise. Optionee will not have any rights as a
shareholder of the Company with respect to any unexercised portion of the
Option.
4. SECURITIES LAWS. The Option granted under this Agreement is subject to
the Company's registering the Common Shares under applicable securities laws.
Optionee's Option shall not be exercised if the exercise would violate:
(a) Any applicable state securities law;
(b) Any applicable registration or other requirements under the
Securities Act of 1933, as amended (the "ACT") the Securities Exchange Act of
1934, as amended, or the listing requirements of the NYSE; or
(c) Any applicable legal requirements of any governmental authority.
Furthermore, if a registration statement with respect to the Common Shares
to be issued upon the exercise of this Option is not in effect or if counsel for
the Company deems it necessary or desirable to avoid a possible violation of the
Act, the Company may require, as a condition to its issuance and delivery of
certificates for the Shares (or recording a book-entry of the issuance
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of shares), the delivery to the Company of a commitment in writing by the person
exercising the option rights that at the time of such exercise it is his
intention to acquire such Common Shares for his own account for investment only
and not with a view to, or for resale in connection with, the distribution
thereof. Such person understands that the Common Shares may be "restricted
securities" as defined in Rule 144 issued under the Act and that any resale,
transfer or other disposition of the Shares will be accomplished only in
compliance with Rule 144 of the Act, or other or subsequent applicable rules and
regulations under the Act. The Company may place on the certificates evidencing
the Shares an appropriate legend reflecting such commitment and the Company may
refuse to permit transfer of the certificates until it has been furnished with
evidence satisfactory to it that no violation of the Act (or the rules and
regulations under the Act) would be involved in such transfer. The foregoing to
the contrary notwithstanding, prior to vesting of the Option the Company shall
use its reasonable efforts to cause a Form S-8 registration statement respecting
the Option to be filed and adopted pursuant to the Act.
5. UNDERSTANDING. Nothing in these terms and conditions will limit or
restrict any right that the Company may have with respect to Optionee's
employment, subject to the Employment Agreement.
6. NON-ASSIGNMENT OF RIGHTS. Optionee may not assign or transfer any
portion or all of the Options or rights granted thereunder except by will or by
the laws of descent and distribution.
7. EMPLOYMENT BY COMPANY. For purposes of this Agreement, employment by a
parent or subsidiary of or a successor to the Company shall be considered
employment by the Company.
8. PLAN ADMINISTRATOR. The Compensation Committee of the Company has
authority, subject to the applicable plan provisions, (i) to construe this
Agreement and the Plan, (ii) to establish, amend and rescind rules and
regulations relating to the Plans, (iii) to modify these terms and conditions
(not otherwise adverse to Optionee), and (iv) to make all other determinations
that in the judgment of the Compensation Committee are necessary or desirable
for the administration of the Plan. The Compensation Committee may correct any
defect or supply any omission or reconcile any inconsistency in the plans or in
these terms and conditions in the manner and to the extent it shall deem
expedient to carry out the intent of the plans. All action by the Compensation
Committee under the provisions of this paragraph shall be conclusive for all
purposes.
9. INCORPORATION OF PLAN. The provisions of the Plan are incorporated by
reference into these terms and conditions.
10. INCONSISTENCY. To the extent any terms and conditions herein conflict
with the terms and conditions of the Plan, the terms and conditions of the Plan
shall control. In the event of any inconsistency between either this Agreement
or the Plan, and the Employment Agreement, the Employment Agreement shall
control.
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11. CHOICE OF LAW. These terms and conditions shall be construed and
enforced in accordance with Delaware law, other than any choice of law
provisions calling for the application of the laws of another state.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
XXXXXX CDT INC.
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
----------------------------------------
Xxxx Xxxxxx
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EXHIBIT C
BUY-OUT RSU XXXXX
XXXXXX CDT INC.
RESTRICTED STOCK UNIT AGREEMENT
THIS AGREEMENT is effective October __, 2005 (the "GRANT DATE") by and
between Xxxxxx CDT Inc., a Delaware corporation (the "COMPANY") and Xxxx Xxxxxx
("GRANTEE").
WHEREAS, the Grantee is the President and Chief Executive Officer of the
Company pursuant to an Executive Employment Agreement between Grantee and the
Company, dated September 26, 2005 ("EMPLOYMENT AGREEMENT").
WHEREAS, pursuant to the Employment Agreement, the Grantee has been
selected by the Compensation Committee of the Board of Directors of the Company
(the "BOARD") to receive a grant of ____________ restricted stock units ("RSUS")
representing ____________ shares (the "SHARES") of the Company's common stock,
$0.01 par value per share (the "COMMON STOCK"), subject to certain restrictions,
and to enter into a Restricted Stock Unit Agreement in the form hereof.
NOW THEREFORE, subject to the terms and conditions set forth herein:
1. GRANT OF RSUs. The Company hereby grants to the Grantee on the Grant
Date ______________ RSUs. Each RSU represents the right to receive one (1)
Share. Each RSU shall vest and become nonforfeitable ("VEST") in accordance with
Section 2 below. The Company shall hold the RSUs in book-entry form. The Grantee
shall have no direct or secured claim in any specific assets of the Company or
the Shares of Stock to be issued to Grantee under Section 4(a) hereof and will
have the status of a general unsecured creditor of the Company. The RSUs are not
granted under the Company's 2001 Long-Term Performance Incentive Plan (the
"PLAN"); provided, that for all purposes hereunder, this grant shall be subject
to the terms and conditions of the Plan as if the RSUs had been granted under
the Plan. Capitalized terms used in this Agreement without further definition
shall have the same meanings given to such terms in the Plan.
2. VESTING.
(a) Generally. Subject to the acceleration of the Vesting or the
forfeiture and termination of the RSUs pursuant to Section 2(b) below, all of
the RSUs shall Vest on September 26, 2010 provided that the Grantee has been
continuously employed by the Company through such date.
(b) Change in Control. Immediately preceding the occurrence of a
Change in Control of the Company (as defined in Section 10(a) of the Employment
Agreement), the unvested RSUs shall immediately vest in full and shall be
immediately payable, subject to any deferral pursuant to an election under
Section 4(b) hereof.
(c) Termination of Employment; Expiration of the Term. The unvested
RSUs shall vest or be forfeited upon a termination of Grantee's employment, or
upon the expiration of the Term (as defined in the Employment Agreement) as set
forth in the applicable subsection of Section 8 of the Employment Agreement. Any
forfeited RSUs shall be immediately cancelled and shall terminate. All Vested
RSUs shall be paid to Grantee as provided at Section 4 hereof.
3. NO TRANSFER OR ASSIGNMENT OF RSUs; RESTRICTIONS ON SALE. Except as
otherwise provided in this Agreement, the RSUs and the rights and privileges
conferred thereby shall not be sold, pledged or otherwise transferred (whether
by operation of law or otherwise) and shall not be subject to sale under
execution, attachment, levy or similar process until the Shares underlying the
RSUs are delivered to the Grantee or his designated representative. The Grantee
agrees not to sell any Shares at any time when applicable laws or Company
policies prohibit a sale. This restriction shall apply as long as the Grantee is
an employee, consultant or director of the Company or a subsidiary of the
Company.
4. DELIVERY OF SHARES.
(a) Issuance of Shares. As of the date in which the RSUs Vest, the
Company shall issue to the Grantee a stock certificate (or register Shares of
Common Stock in book-entry form) representing a number of Shares of Stock equal
to the number of RSUs then vested; provided, such issuance shall be deferred
until the first such later date after Vesting as may be required to comply with
the provisions of Section 409A of the Internal Revenue Code of 1986, as amended
("CODE").
(b) Deferral. Grantee may defer the issuance of his Vested Shares by
his written election delivered to the Board made (i) prior to the date Shares
become issuable to Grantee under Section 2(b) or Section 4(a), (ii) on a date
and in substance compliant in all respects with any applicable restrictions
under Section 409A of the Code and (iii) in a form acceptable to the Committee.
(c) Withholding Taxes. At the time Shares of Common Stock are issued
to Grantee, the Company shall satisfy the minimum statutory Federal, state and
local withholding tax obligation (including the FICA and Medicare tax
obligation) required by law with respect to the distribution of Shares from one
or more of the following methods, as Grantee elects: (i) the Company shall
withhold cash compensation then accrued and payable to Grantee of such required
withholding amount, (ii) the Grantee may tender a check or other payment of cash
to the Company of such required withholding amount, or (iii) by withholding from
Shares issuable to Grantee hereunder having an aggregate Fair Market Value equal
to the amount of such required withholding.
5. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued unless and until
the Company has determined that:
(a) It and the Grantee, at Company's expense, have taken any actions
required to register the Shares under the Securities Act of 1933, as amended
("ACT") or to perfect an exemption from the registration requirements thereof;
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(b) Any applicable listing requirement of any stock exchange or other
securities market on which the Common Stock is listed has been satisfied;
(c) Any other applicable provision of state or federal law has been
satisfied; and
(d) The foregoing to the contrary notwithstanding, prior to issuance
of Shares pursuant to Section 4, the Company shall use its reasonable efforts to
cause a Form S-8 registration statement to be filed and adopted pursuant to the
Act.
6. MISCELLANEOUS PROVISIONS.
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee's
representative shall have any rights as a stockholder with respect to any Shares
underlying the RSUs until the date that the Company is obligated to deliver such
Shares to the Grantee or the Grantee's representative.
(b) Dividend Equivalents. As of each dividend date with respect to
Shares of Common Stock, a dollar amount equal to the amount of the dividend that
would have been paid on the number of Shares of Common Stock equal to the number
of RSUs held by Grantee as of the close of business on the record date for such
dividend shall be converted into a number of restricted stock units equal to the
number of whole and fractional shares of Common Stock that could have been
purchased at the closing price on the dividend payment date with such dollar
amount. In the case of any dividend declared on shares of Common Stock which is
payable in shares of Common Stock, Grantee shall be credited with an additional
number of restricted stock units equal to the product of (x) the number of his
restricted stock units then held on the related dividend record date multiplied
by the (y) the number of shares of Common Stock (including any fraction thereof)
distributable as a dividend on a share of Common Stock. All such dividend
equivalents credited to Grantee shall be added to and in all respects thereafter
be treated as RSUs hereunder.
(c) No Retention Rights. Nothing in this Agreement shall confer upon
the Grantee any right to continue in the employment or service of the Company
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company or of the Grantee, which rights are hereby
expressly reserved by each, to terminate his employment or service at any time
and for any reason, with or without Cause.
(d) Anti-Dilution. In the event that any change in the outstanding
Shares of Common Stock of the Company (including an exchange of Common Stock for
stock or other securities of another corporation) occurs by reason of a Common
Stock dividend or split, recapitalization, merger, consolidation, combination,
exchange of Shares or other similar corporate changes, other than for
consideration received by the Company therefor, the number of RSUs awarded
hereunder, and the number of Shares distributable pursuant to Vested RSUs, shall
be appropriately adjusted by the Compensation Committee of the Board
("COMPENSATION COMMITTEE") whose determination shall be conclusive; provided,
however that fractional Shares shall be rounded to the nearest whole share. In
the event of any other change in the Common Stock, the Compensation Committee
shall in its sole discretion determine whether such change
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equitably requires a change in the number or type of Shares subject to RSUs and
any adjustment made by the Committee shall be conclusive.
(e) Incorporation of Plan. The provisions of the Plan are incorporated
by reference into these terms and conditions.
(f) Inconsistency. To the extent any terms and conditions herein
conflict with the terms and conditions of the Plan, the terms and conditions of
the Plan shall control. In the event of any inconsistency between either this
Agreement or the Plan, and the Employment Agreement, the Employment Agreement
shall control.
(g) Notices. Any notice required by the terms of this Agreement shall
be given in writing and shall be deemed effective upon personal delivery, upon
deposit with the United States Postal Service, by registered or certified mail,
with postage and fees prepaid or upon deposit with a reputable overnight
courier. Notice shall be addressed to the Company at its principal executive
office and to the Grantee at the address that he most recently provided to the
Company.
(h) Entire Agreement; Amendment; Waiver. This Agreement constitutes
the entire contract between the parties hereto with regard to the subject matter
hereof. This Agreement supersedes any other agreements, representations or
understandings (whether oral or written and whether express or implied) which
relate to the subject matter hereof. No alteration or modification of this
Agreement shall be valid except by a subsequent written instrument executed by
the parties hereto. No provision of this Agreement may be waived except by a
writing executed and delivered by the party sought to be charged. Any such
written waiver will be effective only with respect to the event or circumstance
described therein and not with respect to any other event or circumstance,
unless such waiver expressly provides to the contrary. In the event of any
inconsistency between this Agreement and the Employment Agreement, the
Employment Agreement shall control.
(i) Choice of Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, as such laws are applied
to contracts entered into and performed in such State, without giving effect to
the choice of law provisions thereof.
(j) Successors.
(i) This Agreement is personal to the Grantee and, except as
otherwise provided in Section 3 above, shall not be assignable by the Grantee
otherwise than by will or the laws of descent and distribution, without the
written consent of the Company. This Agreement shall inure to the benefit of and
be enforceable by the Grantee's legal representatives.
(ii) This Agreement shall inure to the benefit of and be binding
upon Company and its successors. It shall not be assignable except in connection
with the sale or other disposition of all or substantially all the assets or
business of the Company.
(k) Severability. If any provision of this Agreement for any reason
should be found by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality or enforceability of any remaining
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provision or portion thereof, which remaining provision or portion thereof shall
remain in full force and effect as if this Agreement had been adopted with the
invalid, illegal or unenforceable provision or portion thereof eliminated.
(l) Headings. The headings, captions and arrangements utilized in this
Agreement shall not be construed to limit or modify the terms or meaning of this
Agreement.
(m) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
This Agreement is executed by the Company as of the date and year first
written above.
XXXXXX CDT INC.
By:
------------------------------------
Title:
---------------------------------
The undersigned Grantee hereby acknowledges receipt of an executed original
of this Agreement and accepts the RSUs granted hereunder, subject to the terms
and conditions hereinabove set forth.
----------------------------------------
Xxxx Xxxxxx, Grantee
Date: , 2005
----------------
C-5
EXHIBIT D
GENERAL RELEASE OF ALL CLAIMS
1. For and in consideration of the promises made in the Executive
Employment Agreement (defined below), the adequacy of which is hereby
acknowledged, the undersigned ("EXECUTIVE"), for himself, his heirs,
administrators, legal representatives, executors, successors, assigns, and all
other persons claiming through Executive, if any (collectively, "RELEASERS"),
does hereby release, waive, and forever discharge Belden CDT Inc. ("COMPANY"),
the Company's subsidiaries, parents, affiliates, related organizations,
employees, officers, directors, attorneys, successors, and assigns
(collectively, the "RELEASEES") from, and does fully waive any obligations of
Releasees to Releasers for, any and all liability, actions, charges, causes of
action, demands, damages, or claims for relief, remuneration, sums of money,
accounts or expenses (including attorneys' fees and costs) of any kind
whatsoever, whether known or unknown or contingent or absolute, which heretofore
has been or which hereafter may be suffered or sustained, directly or
indirectly, by Releasers in consequence of, arising out of, or in any way
relating to Executive's employment with the Company or any of its affiliates or
the termination of Executive's employment. The foregoing release and discharge,
waiver and covenant not to xxx includes, but is not limited to, all claims and
any obligations or causes of action arising from such claims, under common law
including wrongful or retaliatory discharge, breach of contract (including but
not limited to any claims under the Employment Agreement between the Company and
Executive, dated ___________, 2005, [as amended] (the "EMPLOYMENT AGREEMENT")
and any claims under any stock option and restricted stock units agreements
between Executive and the Company) and any action arising in tort including
libel, slander, defamation or intentional infliction of emotional distress, and
claims under any federal, state or local statute including Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1866 and 1871 (42 U.S.C.
Section 1981), the National Labor Relations Act, the Age Discrimination in
Employment Act (ADEA), the Fair Labor Standards Act, the Americans with
Disabilities Act of 1990, the Rehabilitation Act of 1973, the Missouri Human
Rights Act (R.S. MO Section 213.010 et seq.), or the discrimination or
employment laws of any state or municipality, or any claims under any express or
implied contract which Releasers may claim existed with Releasees. This release
and waiver does not apply to any claims or rights that may arise after the date
Executive signs this General Release. The foregoing release does not apply to
any claims of indemnification under the Employment Agreement or a separate
indemnification agreement with the Company or rights of coverage under directors
and officers liability insurance.
2. Excluded from this release and waiver are any claims which cannot be
waived by law, including but not limited to the right to participate in an
investigation conducted by certain government agencies. Executive does, however,
waive Executive's right to any monetary recovery should any agency (such as the
Equal Employment Opportunity Commission) pursue any claims on Executive's
behalf. Executive represents and warrants that Executive has not filed any
complaint, charge, or lawsuit against the Releasees with any government agency
or any court.
3. Executive agrees never to xxx Releasees in any forum for any claim
covered by the above waiver and release language, except that Executive may
bring a claim under the ADEA to challenge this General Release or as otherwise
provided in this General Release. If
Executive violates this General Release by suing Releasees, other than under the
ADEA or as otherwise set forth in Section 1 hereof, Executive shall be liable to
the Company for its reasonable attorneys' fees and other litigation costs
incurred in defending against such a suit. Nothing in this General Release is
intended to reflect any party's belief that Executive's waiver of claims under
ADEA is invalid or unenforceable, it being the interest of the parties that such
claims are waived.
4. Executive acknowledges, agrees and affirms that he is subject to certain
post-employment covenants pursuant to Section 11 of the Employment Agreement,
which covenants survive the termination of his employment and the execution of
this General Release.
5. Executive acknowledges and recites that:
(a) Executive has executed this General Release knowingly and
voluntarily;
(b) Executive has read and understands this General Release in its
entirety;
(c) Executive has been advised and directed orally and in writing (and
this subparagraph (c) constitutes such written direction) to seek legal counsel
and any other advice he wishes with respect to the terms of this General Release
before executing it;
(d) Executive's execution of this General Release has not been coerced
by any employee or agent of the Company; and
(e) Executive has been offered twenty-one (21) calendar days after
receipt of this General Release to consider its terms before executing it.
6. This General Release shall be governed by the internal laws (and not the
choice of laws) of the State of Delaware, except for the application of
pre-emptive Federal law.
7. Executive shall have seven (7) days from the date hereof to revoke this
General Release by providing written notice of the revocation to the Company, as
provided in Section 13 of the Employment Agreement, upon which revocation this
General Release shall be unenforceable and null and void and in the absence of
such revocation this General Release shall be binding and irrevocable by
Executive.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
Date: , 20
----------------------- -- EXECUTIVE:
----------------------------------------
----------------------------------------
[Insert Name]
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