EXHIBIT 10.6
CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT dated as of December ___, 1997, between
MIDAS GROUP, INC., a Delaware corporation (the "Company"), and _____________
___________ (the "Executive").
WHEREAS, the Company's Board of Directors has determined that, in light
of the importance of the Executive's continued services to the stability and
continuity of management of the Company and its subsidiaries, it is
appropriate and in the best interests of the Company and of its shareholders
to reinforce and encourage the Executive's continued disinterested attention
and undistracted dedication to his duties in the potentially disturbing
circumstances of a possible change in control of the Company by providing
some degree of personal financial security;
WHEREAS, the Company is currently a subsidiary of Xxxxxxx Corporation
("Xxxxxxx");
WHEREAS, on December 31, 1997, Xxxxxxx intends to distribute to its
shareholders all of the issued and outstanding shares of the Company's common
stock (such date, or any subsequent date on which such distribution shall
finally occur is hereinafter referred to as the "Effective Date");
WHEREAS, in order to induce the Executive to remain in the employ of the
Company or a subsidiary of the Company (a "Subsidiary"), the Company's Board
of Directors has determined that it is desirable to pay the Executive the
severance compensation set forth below if the Executive's employment with the
Company or a
Subsidiary terminates in one of the circumstances described below following a
Change in Control (as defined below); and
WHEREAS, Xxxxxxx and/or a Subsidiary have previously entered into
Severance Compensation and Change in Control Agreements with certain
executive officers of the Company and its Subsidiaries, and this Agreement
shall, as of the Effective Date, replace in its entirety any and all such
prior Agreements ("Prior Agreements") to which the Executive is a party;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the Company and the Executive agree as follows:
1. TERM OF AGREEMENT. (a) The term of this Agreement shall commence on
the Effective Date and shall terminate, except to the extent that any
obligation of the Company hereunder remains unpaid as of such time, on the
earlier to occur of the date on which the Executive reaches age 65 and the
third anniversary of the Effective Date, subject to extension as provided in
Section l(b) below; provided, however, that this Agreement shall continue in
effect until the earlier to occur of the date on which the Executive reaches
age 65 and the date three years beyond the initial or any extended date of
termination of this Agreement if a Change in Control shall have occurred
prior to such date of termination of this Agreement (and shall continue for
such additional period as any obligation of the Company under this Agreement
shall remain unpaid).
(b) Commencing on the date after the Effective Date and continuing
on each date thereafter (each such date being hereinafter referred to as a
"Renewal Date"), the term of this
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Agreement shall be automatically extended so as to terminate three years
thereafter, unless at least 60 days prior to a specified Renewal Date the
Company shall give written notice to the Executive that the term of this
Agreement shall not be so extended.
2. CHANGE IN CONTROL. No compensation shall be payable under this
Agreement unless and until (a) there shall have been a Change in Control
while the Executive is still an employee of the Company or a Subsidiary, and
(b) the Executive's employment by the Company or a Subsidiary thereafter
shall have been terminated in accordance with Section 3 of this Agreement.
For purposes of this Agreement, a "Change in Control" shall mean:
(i) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of beneficial ownership within the meaning of Rule
13d-3 promulgated under the Exchange Act, of 25% or more of either (A)
the then outstanding shares of common stock of the Company (the
"Outstanding Common Stock") or (B) the combined voting power of the
then outstanding securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Voting Securities");
excluding, however, the following: (1) any acquisition directly from
the Company (excluding any acquisition resulting from the exercise of
an exercise, conversion or exchange privilege unless the security
being so exercised, converted or exchanged was acquired directly from
the Company), (2) any acquisition by the Company, (3) any acquisition
by an 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 (A), (B) and (C) of clause (iii) in this
definition of Change in Control;
(ii) individuals who, as of the Effective Date, constitute the Board
of Directors of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of such Board; provided that
any individual who becomes a director of the Company subsequent to the
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Effective Date whose election, or nomination for election by the
Company's shareholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board shall be
deemed a member of the Incumbent Board; and provided further, that any
individual who was initially elected as a director of the Company as a
result of an actual or threatened election contest, as such terms are
used in Rule l4a-11 of Regulation 14A promulgated under the Exchange
Act, or any other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board shall not
be deemed a member of the Incumbent Board;
(iii) the consummation of a reorganization, merger or consolidation
of the Company or sale or other disposition of all or substantially
all of the assets of the Company (a "Corporate Transaction");
excluding, however, a Corporate Transaction pursuant to which (A) all
or substantially all of the individuals or entities who are the
beneficial owners, respectively, of the Outstanding Common Stock and
the Outstanding Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than
66-2/3% of, respectively, the outstanding shares of common stock, and
the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or indirectly) in
substantially the same proportions relative to each other as their
ownership, immediately prior to such Corporate Transaction, of the
Outstanding Common Stock and the Outstanding Voting Securities, as the
case may be, (B) no Person (other than: the Company; any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company; the corporation
resulting from such Corporate Transaction; and any Person which
beneficially owned, immediately prior to such Corporate Transaction,
directly or indirectly, 25% or more of the Outstanding Common Stock or
the Outstanding Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 25% or more of,
respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined
voting power of the outstanding securities of such corporation
entitled to vote generally in the election of directors and (C)
individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(iv) the consummation of a plan of complete liquidation or
dissolution of the Company.
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3. TERMINATION FOLLOWING CHANGE IN CONTROL. (a) If a Change in Control
shall have occurred while the Executive is still an employee of the Company
or a Subsidiary, the Executive shall be entitled to the compensation provided
in Section 4 of this Agreement upon the subsequent termination of the
Executive's employment with the Company or Subsidiary within three years of
the date upon which the Change in Control shall have occurred, unless such
termination is as a result of (i) the Executive's death, (ii) the Executive's
Disability (as defined in Section 3(b) below), (iii) the Executive's
Retirement (as defined in Section 3(c) below), (iv) the Executive's
termination for Cause (as defined in Section 3(d) below), or (v) the
Executive's decision to terminate employment other than for Good Reason (as
defined in Section 3(e) below). Notwithstanding anything to the contrary in
this Agreement, if a Change in Control occurs and if the Executive's
employment with the Company or a Subsidiary was terminated prior to the date
on which the Change in Control occurs, and if it is reasonably demonstrated
by the Executive that such termination of employment (i) was at the request
of a third party who had taken steps reasonably calculated to effect the
Change in Control, or (ii) otherwise arose in connection with or anticipation
of the Change in Control, then for all purposes of this Agreement, the
termination of the Executive's employment shall be deemed to have occurred
immediately following the Change in Control.
(b) DISABILITY. If, as a result of the Executive's incapacity due to a
medically determinable physical or mental illness which can be expected to be
permanent or of indefinite duration (as certified in writing by a physician
selected by the Company and reasonably acceptable to the Executive), the
Executive
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shall qualify for benefits under the long-term disability plan of the Company
or a Subsidiary and shall have been absent from his duties with the Company
or a Subsidiary on a full-time basis for a continuous period of six months
commencing with the date of the Change in Control or the first day of such
absence (whichever is later) the Company or such Subsidiary may terminate the
Executive's employment for "Disability" without the Executive being entitled
to the compensation provided in Section 4.
(c) RETIREMENT. The term "Retirement" as used in this Agreement shall
mean termination by the Company or a Subsidiary or the Executive of the
Executive's employment based on the Executive having reached age 65 without
the Executive being entitled to the compensation provided in Section 4.
Termination based on "Retirement" shall not include, for purposes of this
Agreement, the Executive's taking of early retirement by reason of a
termination by the Executive of his employment for Good Reason.
(d) CAUSE. The Company or a Subsidiary may terminate the Executive's
employment for Cause without the Executive being entitled to the compensation
provided in Section 4. For purposes of this Agreement, the Company or
Subsidiary shall have "Cause" to terminate the Executive's employment ONLY on
the basis of (i) the Executive's wilful and continued failure substantially
to perform his duties with the Company or Subsidiary (other than any such
failure resulting from his incapacity due to physical or mental illness or
any such failure resulting from the Executive's termination for Good Reason),
after a written demand for substantial performance is delivered to the
Executive by the Chief Executive Officer (or if the Executive is Chief
Executive Officer, by the
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Board of Directors) which specifically identifies the manner in which the
Chief Executive Officer (or the Board of Directors if the Executive is Chief
Executive Officer) believes that the Executive has not substantially
performed his duties, or (ii) the Executive's wilful engagement in gross
conduct materially and demonstrably injurious to the Company or a Subsidiary.
For purposes of this subsection, no act or failure to act on the Executive's
part shall be considered "wilful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company or a Subsidiary. The
Executive shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Executive a written statement of
the Chief Executive Officer (or if the Executive is Chief Executive officer,
a copy of a resolution duly adopted by the affirmative vote of not less than
two-thirds of the entire membership of the Board of Directors at a duly
convened meeting of the Board of Directors), finding that in the good faith
opinion of the Chief Executive Officer (or the Board of Directors if the
Executive is Chief Executive Officer) the Executive was guilty of conduct set
forth in clause (i) or (ii) of the second sentence of this Section 3(d) and
specifying the particulars thereof in detail.
(e) GOOD REASON. The Executive may terminate the Executive's employment
with the Company or a Subsidiary for Good Reason within three years after a
Change in Control and during the term of this Agreement and become entitled
to the compensation provided in Section 4. For purposes of this Agreement,
"Good
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Reason" shall mean any of the following events, unless it occurs with the
Executive's express prior written consent:
(i) the assignment to the Executive by the Company or a
Subsidiary of any duties inconsistent with, or a diminution of, the
Executive's position, duties, titles, offices, responsibilities or
status with the Company or a Subsidiary immediately prior to a Change
in Control, or any removal of the Executive from or any failure to
reelect the Executive to any of such positions, except in connection
with the termination of the Executive's employment for Disability,
Retirement or Cause or as a result of the Executive's death or by the
Executive other than for Good Reason;
(ii) a reduction by the Company or a Subsidiary in the
Executive's base salary as in effect on the date hereof or as the same
may be increased from time to time during the term of this Agreement
or the Company's or Subsidiary's failure to increase (within 15 months
of the Executive's last increase in base salary) the Executive's base
salary after a Change in Control in an amount which is substantially
similar, on a percentage basis, to the average percentage increase in
base salary for all officers of the Company or the Subsidiary effected
during the preceding 12 months, other than a reduction of the
Executive's base salary pursuant to the terms of the short-term or
long-term disability plans of the Company or a Subsidiary during a
period in which the Executive is disabled (within the meaning of such
plan or plans) and qualifies for benefits under such plan or plans;
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(iii) any failure by the Company or a Subsidiary to continue in
effect any benefit plan or arrangement (including, without limitation,
any pension or retirement plan, employee stock ownership plan, group
life insurance plan, medical, dental, accident and disability plans
and educational assistance reimbursement plan) in which the Executive
is participating at the time of a Change in Control (or to substitute
and continue other plans providing the Executive with substantially
similar benefits) (hereinafter referred to as "Benefit Plans"), the
taking of any action by the Company or a Subsidiary which would
adversely affect the Executive's participation in or materially reduce
the Executive's benefits under any such Benefit Plan or deprive the
Executive of any material fringe benefit enjoyed by the Executive at
the time of a Change in Control, or the failure by the Company or
Subsidiary to provide the Executive with the number of paid vacation
days to which the Executive is entitled in accordance with the
vacation policies in effect at the time of a Change in Control;
(iv) any failure by the Company or a Subsidiary to continue in
effect any incentive plan or arrangement (including, without
limitation, the Company's annual bonus and contingent bonus
arrangements and credits and the right to receive performance awards
and similar incentive compensation benefits) in which the Executive is
participating at the time of a Change in Control (or to substitute and
continue other plans or arrangements providing the
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Executive with substantially similar benefits) (hereinafter referred to as
"Incentive Plans") or the taking of any action by the Company or a
Subsidiary which would adversely affect the Executive's participation in
any such Incentive Plan or reduce the Executive's benefits under any such
Incentive Plan in an amount which is not substantially similar, on a
percentage basis, to the average percentage reduction of benefits
under any such Incentive Plan effected during the preceding 12 months
for all officers of the Company or a Subsidiary participating in any
such Incentive Plan;
(v) any failure by the Company or a Subsidiary to continue in
effect any plan or arrangement to receive securities of the Company or
awards the value of which is derived from securities of the Company
(including, without limitation, the Company's Stock Incentive Plan and
any other plan or arrangement to receive and exercise stock options,
stock appreciation rights, restricted stock, phantom stock or grants
thereof or to acquire stock or other securities of the Company) in
which the Executive is participating at the time of a Change in
Control (or to substitute and continue plans or arrangements providing
the Executive with substantially similar benefits) (hereinafter
referred to as "Securities Plans") or the taking of any action by the
Company or a Subsidiary which would adversely affect the Executive's
participation in or materially reduce the Executive's benefits under
any such Securities Plan;
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(vi) a relocation of the Company's principal executive offices
or the Executive's relocation to any metropolitan area other than the
metropolitan area in which the Executive performed the Executive's
duties immediately prior to a Change in Control;
(vii) a substantial increase in the Executive's business travel
obligations over such obligations as they existed at the time of a
Change in Control;
(viii) any material breach by the Company or a Subsidiary of any
provision of this Agreement;
(ix) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company pursuant to
Section 7(a); or
(x) any purported termination by the Company or a Subsidiary of
the Executive's employment which is not effected pursuant to a Notice
of Termination satisfying the requirements of Section 3(f), including
any purported termination of employment under the circumstances
described in the last sentence of Section 3(a).
(f) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or a Subsidiary pursuant to Section 3(b), 3(c) or
3(d) or by the Executive pursuant to Section 3(e) shall be communicated to
the other party by a Notice of Termination. For purposes of this Agreement,
a "Notice of Termination" shall mean a written notice which shall indicate
the specific termination provision in this Agreement relied upon and which
sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's
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employment under the provision so indicated. For purposes of this Agreement,
no such purported termination by the Company or Subsidiary shall be effective
without such Notice of Termination.
(g) DATE OF TERMINATION. "Date of Termination" shall mean (a) if
the Executive's employment is terminated by the Company or a Subsidiary for
Disability, 30 days after Notice of Termination is given to the Executive
(provided that the Executive shall not have returned to the performance of
the Executive's duties on a full-time basis during such 30-day period) or (b)
if the Executive's employment is terminated for any other reason, the date on
which a Notice of Termination is given.
4. SEVERANCE COMPENSATION UPON TERMINATION. (a) If the Executive's
employment by the Company or a Subsidiary is terminated (i) by the Company or
Subsidiary pursuant to Section 3(b), 3(c) or 3(d) or by reason of death or
(ii) by the Executive other than for Good Reason, the Executive shall not be
entitled to any severance compensation under this Agreement, but the absence
of the Executive's entitlement to any benefits under this Agreement shall not
prejudice the Executive's right to the full realization of any and all other
benefits to which the Executive shall be entitled pursuant to the terms of
any employee benefit plans or other agreements or policies of the Company or
a Subsidiary in which the Executive is a participant or to which the
Executive is a party.
(b) If the Executive's employment by the Company or a Subsidiary is
terminated (x) by the Company or such Subsidiary other than pursuant to
Section 3(b), 3(c) or 3(d) or by reason of death or (y) by the Executive for
Good Reason, then the Executive shall be entitled to the severance
compensation provided below:
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(i) In lieu of any further salary or incentive payments to the
Executive for periods subsequent to the Date of Termination, the Company
shall pay in cash as severance compensation to the Executive at the time
specified in subsection (ii) below, a lump-sum severance payment equal to
three (3) times the Executive's Adjusted Annual Compensation. For
purposes of this Agreement, "Adjusted Annual Compensation" shall mean the
sum of (x) an amount equal to the highest level of the Executive's annual
base salary in effect (calculated prior to any deferral of salary,
qualified or nonqualified) between the time of the Change in Control and
the Date of Termination, (y) an amount equal to the greater of the
amounts earned by the Executive under the annual incentive compensation
plan of the Company or a Subsidiary (or under the Xxxxxxx Management
Incentive Compensation Plan, if applicable) for the two preceding
calendar years (calculated prior to any deferral of salary, qualified or
nonqualified), or, if the Executive has participated in such plan for
only one year, an amount equal to the amount earned under such plan for
the preceding calendar year, and (z) an amount equal to one-third of the
sum of the amounts of the current "Target" values for the Executive under
any annual or long term incentive compensation plans of the Company or a
Subsidiary, such Target values to be prorated from the beginning of the
applicable measurement period for each such plan through the end of the
month in which the Date of Termination occurs.
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(ii) The severance compensation provided for in subsection (i)
above shall be paid not later than the 10th day following the Date of
Termination; provided, however, that, if the amount of such compensation
cannot be finally determined on or before such day, the Company shall pay
to the Executive on such day an estimate, as determined in good faith by
the Company, of the minimum amount of such compensation and shall pay the
remainder of such compensation (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986,
as amended (the "Code")) as soon as the amount thereof can be determined,
but in no event later than the 30th day after the Date of Termination.
In the event that the amount of the estimated payment exceeds the amount
subsequently determined to have been payable, such excess shall
constitute a loan by the Company to the Executive payable on the 30th day
after demand by the Company (together with interest at the rate provided
in Section 1274(b)(2)(B) of the Code, commencing on the 31st day
following such demand).
(iii) The Company shall arrange to provide the Executive for a
period of thirty-six (36) months following the Date of Termination or
until the Executive's earlier death, with life, medical, dental, accident
and disability insurance benefits and a package of "executive benefits",
including to the extent applicable capital assessments and dues for
pre-existing club memberships and the use of an automobile or an
allowance therefor (collectively,
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"Employment Benefits"), substantially similar to those which the
Executive was receiving immediately prior to the Date of Termination.
(iv) During the term of this Agreement and through the period of
thirty-six (36) months following the Date of Termination, all benefits
under any pension or retirement plans, employee stock ownership plan or
any other plan or agreement relating to retirement benefits
(collectively, "Retirement Benefits") in which the Executive participates
shall continue to accrue to the Executive, crediting of service of the
Executive with respect to Retirement Benefits shall continue, and the
Executive shall be entitled to receive all Retirement Benefits provided
to the Executive as a fully vested participant under any such plan or
agreement relating to retirement benefits. No contributions shall be
required to be made by the Executive to any plan providing for employee
contributions following the Date of Termination. To the extent that the
amount of any Retirement Benefits are or would be payable from a
nonqualified plan, the Company shall, as soon as practicable following
the Date of Termination (but in no event later than the 30th day after
the Date of Termination), pay directly to the Executive in one lump sum,
cash in an amount equal to the additional benefits that would have been
provided had such accrual or crediting been taken into account in
calculating such Retirement Benefits. Such lump sum payment shall be
calculated as provided in the relevant plan and, in the case of a defined
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contribution plan, shall include an amount equal to the gross amount of
the maximum employer contributions.
(c) In the event the severance compensation payable under this
Section 4, either alone or together with any other payments to the Executive
from the Company or a Subsidiary (including, but not limited to, payments
under the Company's Stock Incentive Plan or any agreement or award issued
pursuant to such Plan or any successor plan), would constitute a "parachute
payment" (as defined in Section 280G of the Code), and subject the Executive
to the excise tax imposed by Section 4999 of the Code, the Company shall pay
the Executive, as additional severance compensation hereunder and payable at
the same time or times as such severance compensation, the amount of such
excise tax and any additional taxes payable by the Executive by reason of
such payment (on the basis of a customary "gross-up" formula), as calculated
by the Company. The Company agrees to indemnify and hold harmless the
Executive from and against any liability for the payment of additional taxes
arising from any deficiency in the amount of such excise tax and any
additional taxes thereon so calculated by the Company, together with any
interest or penalties applicable thereto; provided, however, that it shall be
a condition of this obligation to indemnify and hold harmless the Executive
that the Executive shall have timely notified the Company of any proposed
assessment relating to any claimed deficiency therein and offered the Company
the right to contest such assessment or participate in, at the expense of the
Company, any proceeding relating thereto.
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5. PAYMENT OF TAXES; CONTINUATION OF EMPLOYMENT. Notwithstanding any
other provision of this Agreement or the premises hereto, in the event the
Executive is entitled to receive compensation (whether in the form of cash,
securities or other form of compensation) under or pursuant to any plan or
agreement of or with the Company or a Subsidiary as the result of a Change in
Control, the Company shall pay to the Executive any applicable excise tax,
and any taxes thereon, and shall indemnify and hold harmless the Executive in
respect thereof, as provided in Section 4(c) above, regardless of whether the
employment of the Executive with the Company or a Subsidiary shall have
terminated.
6. NO OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER CONTRACTUAL
RIGHTS. (a) The Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for
under this Agreement be reduced by any compensation earned by the Executive
after the termination of the Executive's employment with the Company or a
Subsidiary.
(b) The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish the Executive's existing rights, or rights which would accrue solely
as a result of the passage of time, under any Benefit Plan, Incentive Plan or
Securities Plan, employment agreement or other contract, plan or arrangement
of the Company or any Subsidiary.
7. SUCCESSOR TO THE COMPANY. (a) The Company will require any successor
or assign (whether direct or indirect, by purchase,
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merger, consolidation or otherwise) to all or substantially all the business
and/or assets of the Company, by agreement in form and substance satisfactory
to the Executive, expressly, absolutely and unconditionally to 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 or
assignment had taken place. Any failure of the Company to obtain such
agreement prior to the effectiveness of any such succession or assignment
shall be a material breach of this Agreement and shall entitle the Executive
to terminate the Executive's employment for Good Reason. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section 7 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation
of law.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Executive should die while any amounts are still payable to the Executive
hereunder all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's devisees,
legatees, or other designees or, if there be no such designee, to the
Executive's estate.
8. NOTICES. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall
be given by United States certified mail (return receipt requested, postage
prepaid), by personal delivery or by a
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nationally recognized express delivery service, and shall be deemed to have
been given when actually received, as follows:
If to the Company:
Midas Group, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention of: General Counsel
If to the Executive, to the Executive's home address as shown on the
Company's personnel records; or such other address as either party may have
given to the other in writing in accordance herewith.
9. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed
to in writing signed by the Executive and the Company. No waiver 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. 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 set forth expressly in this Agreement. This Agreement shall be governed
by and construed in accordance with the laws of the State of Illinois.
10. EMPLOYMENT. The Executive agrees to be bound by the terms and
conditions of this Agreement and to remain in the employ of the Company or a
Subsidiary during any period following any public announcement by any person
of any proposed transaction or
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transactions which, if effected, would result in a Change in Control until a
Change in Control has taken place or, in the opinion of the Board of
Directors, such person has abandoned or terminated its efforts to effect a
Change in Control. Subject to the foregoing and to the last sentence of
Section 3(a), nothing contained in this Agreement shall impair or interfere
in any way with the right of the Executive to terminate the Executive's
employment or the right of the Company or any Subsidiary to terminate the
employment of the Executive with or without cause prior to a Change in
Control. Nothing contained in this Agreement shall be construed as a
contract of employment between the Company or any Subsidiary and the
Executive or as a right of the Executive to continue in the employ of the
Company or any Subsidiary, or as a limitation of the right of the Company or
any Subsidiary to discharge the Executive with or without cause prior to a
Change in Control.
11. VALIDITY. The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
13. LEGAL FEES AND EXPENSES. (a) The Company shall pay all legal fees
and expenses which the Executive may incur as a result of the Company or a
Subsidiary contesting the validity, enforceability or the Executive's
interpretation of, or determinations under, this Agreement.
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(b) The Company shall pay all legal fees and expenses which the
Executive may incur by reason of the termination of the Executive's
employment, other than as a result of (i) the Executive's death, (ii) the
Executive's Disability (as defined in Section 3(b) above), (iii) the
Executive's Retirement (as defined in Section 3(c) above), (iv) the
Executive's termination for Cause (as defined in Section 3(d) above), or (v)
the Executive's decision to terminate employment other than for Good Reason
(as defined in Section 3(e) above; such fees and expenses shall include,
without limitation, those incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit provided
by this Agreement.
(c) The Company shall pay all legal fees and expenses which the
Executive may incur as a result of any tax assessments or proceedings arising
from payments made by the Company pursuant to Section 4(c) or Section 5 above.
(d) If the payment by the Company of any legal fees and expenses
pursuant to this Section 13 shall constitute compensation to the Executive,
the Company agrees, as a separate and independent undertaking, to pay to the
Executive upon demand any and all taxes, of whatever nature or description,
applicable to such payment, together with any taxes thereon (on the basis of
a customary "gross-up" formula).
14. CONFIDENTIALITY. The Executive shall retain in confidence any and
all confidential information known to the Executive concerning the Company
and its Subsidiaries and their business so long as such information is not
otherwise publicly disclosed.
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15. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION OF PRIOR
AGREEMENT(S). This Agreement shall become effective on the Effective Date,
whereupon the Prior Agreements shall be terminated and be of no further force
or effect. Xxxxxxx shall be and be deemed a third-party beneficiary of this
Section 15.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MIDAS GROUP, INC.
By
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Name:
Title:
EXECUTIVE
By
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Name:
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