EXHIBIT 10.8
TIER 1 - CEO
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (the "Agreement") is made and entered into
as of _____________________ (date) by and between Xxxxxxxxxxx Industries, Inc.,
an Indiana corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Company considers it essential to the best interests of its
shareholders to xxxxxx continuous employment by the Company and its subsidiaries
of their key management personnel;
WHEREAS, the Compensation and Management Development Committee (the
"Committee") of the Board of Directors (the "Board") of the Company has
recommended, and the Board has approved, that the Company enter into Change in
Control Agreements with key executives of the Company and its subsidiaries who
are from time to time designated by the management of the Company and approved
by the Committee;
WHEREAS, the Committee and the Board believe that Executive has made
valuable contributions to the productivity and profitability of the Company and
consider it essential to the best interests of the Company and its shareholders
that Executive be encouraged to remain with the Company; and
WHEREAS, the Board believes it is in the best interests of the Company and
its shareholders that Executive continue in employment with the Company in the
event of any proposed Change in Control (as defined below) and be in a position
to provide assessment and advice to the Board regarding any proposed Change in
Control without concern that Executive might be unduly distracted by the
personal uncertainties and risks created by any proposed Change in Control:
NOW, THEREFORE, the Company and Executive agree as follows:
1. TERMINATION FOLLOWING A CHANGE IN CONTROL. After the occurrence of a
Change in Control, the Company will provide or cause to be provided to Executive
the rights and benefits described in Section 2 hereof in the event that
Executive's employment with the Company and its subsidiaries is terminated:
(a) by the Company for any reason other than on account of his death,
permanent disability, retirement or for Cause at any time prior to the third
anniversary of a Change in Control;
(b) by Executive for Good Reason at any time prior to the third
anniversary of a Change in Control; or
(c) by Executive for any reason at any time prior to the 30th day
following the first anniversary of the Change in Control.
Anything in this Agreement to the contrary notwithstanding, if a Change in
Control occurs and if the Executive's employment with the Company is terminated
by the Company, without Cause, prior to the date on which the Change in Control
occurs, and if it is reasonably demonstrated by Executive that such termination
of employment (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control or (ii) otherwise arose in
connection with or anticipation of a Change in Control which subsequently occurs
within 3 months of such termination, then for purposes of this Agreement
(including Section 3 hereof) a Change in Control shall be deemed to have
occurred on the day immediately prior to such termination of employment and all
references in Section 2 to payments within a specified period as allowed by law
following "Termination" shall instead be references to the specified period
following the Change in Control.
The rights and benefits described in Section 2 and 3 hereof shall be in
lieu of any severance payments otherwise payable to Executive under any
employment agreement or severance plan or program of the Company or any of its
subsidiaries but shall not otherwise affect Executive's rights to compensation
or benefits under the Company's compensation and benefit programs except to the
extent expressly provided herein.
2. RIGHTS AND BENEFITS UPON TERMINATION.
In the event of the termination of Executive's employment under any of the
circumstances set forth in Section 1 hereof ("Termination"), the Company shall
provide or cause to be provided to Executive the following rights and benefits
provided that Executive executes and delivers to the Company within 30 days of
the Termination a Release in the form attached hereto as Exhibit A:
(a) a lump sum payment in cash in the amount of three times
Executive's Annual Base Salary (as defined below), payable after (i) six (6)
months following Termination if the Executive is covered by Code Section
409A(a)(2)(B)(i) of the Internal Revenue Code ("Code") (Section 409A of the Code
is hereunder referred to as "Section 409A") or (ii) if executive is not covered
by Code Section 409A(a)(2)(B)(i) (or payments deemed exempt from Section 409A),
payment shall be made within 30 days of Termination;
(b) for the 36 months following Termination, continued health and
medical insurance coverage for Executive and his dependents substantially
comparable (with regard to both benefits and employee contributions) to the
coverage provided by the Company immediately prior to the Change in Control for
active employees of equivalent rank. From the end of such 36-month period until
Executive attains Social Security Retirement Age, Executive shall have the right
to purchase (at COBRA rates applicable to such coverage) continued coverage for
himself and his dependents under one or more plans maintained by the Company for
its active employees, to the extent Executive would have been eligible to
purchase continued coverage under the plan in effect immediately prior to the
Change in Control had his employment terminated 36 months following Termination;
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(c) continuation for Executive, for a period of three years following
Termination, of the Executive Life Insurance Bonus Plan (if any) provided for
Executive by the Company immediately prior to the Change in Control and the
group term life insurance program provided for executive immediately prior to
the Change in Control;
(d) a lump sum payment in cash, payable within 30 days or six months,
if payment is subject to rules of Section 409A, of Termination, equal to all
accrued and unpaid vacation, reimbursable business expenses, and similar
miscellaneous benefits as of the Termination; and
(e) a monthly pension annuity benefit starting at age 62 or the
current age, if later (in the form of a joint and 50% survivor annuity) equal to
the difference between (i) the monthly Pension Plan annuity benefit, the monthly
Supplemental Pension Plan annuity benefit if Executive is a participant in the
Supplemental Pension Plan, and any additional pension benefit provided in an
offer letter (or other written document signed by an authorized officer of the
Company other than Executive) if Executive is subject to any such letter or
document, which Executive will receive starting at age 62 or the current age, if
later (in the form of a joint and 50% survivor annuity), and (ii) the monthly
pension annuity benefit he would have received starting at age 62 or the current
age, if later under such plan(s) and/or offer letter, as in effect on or after
the date hereof, (in the form of a joint and 50% survivor annuity) calculated as
if Executive had earned three additional years of service and pay at his Annual
Base Salary (and for purposes of calculating Average Monthly Earnings as defined
in the Pension Plan, Executive Annual Base Salary shall be annualized for any
portion of the imputed service period which is less than a full calendar year
and such portion of the year shall be eligible to be counted). The monthly
pension annuity benefit described in the prior sentence shall be paid at the
same time(s) and in the same form as Executive's benefit under the Pension Plan
(with the same actuarial adjustments as used in calculating benefits under the
Pension Plan and subject to the payment election rules of Section 409A). The
benefit provided for in this paragraph shall be funded in a rabbi trust prior to
the Change in Control. For purposes of this subparagraph (e), the benefit under
clause (ii) will be calculated as though the Pension Plan and any applicable
Supplemental Pension Plan as in effect on or after date hereof, remained the
same.
(f) a lump sum payment in cash for amounts accrued as of the
Termination and an additional amount equal to the amounts accrued for the last
12 months times three (3) immediately prior to the Termination Date in any of
the Defined Contribution, Matching Account and/or Supplemental Contribution
Account, payable after (i) six (6) months following Termination if the Executive
is covered by Code Section 409A(a)(2)(B)(i) of the Internal Revenue Code or (ii)
if executive is not covered by Code Section 409A(a)(2)(B)(i) (or payments deemed
exempt from Section 409A), payment shall be made within 30 days of Termination;
3. ADDITIONAL BENEFITS UPON A CHANGE IN CONTROL.
Upon the occurrence of a Change in Control, so long as Executive is an
employee of the Company at that time, the Company will provide or cause to be
provided to Executive the following rights and benefits whether or not
Executive's employment with the Company or its subsidiaries is terminated:
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(a) a lump sum payment in cash equal to the amount of Short-Term
Incentive Compensation which would be payable to Executive if the company
performance targets (at 100%) with respect to such incentive compensation in
effect for the entire year in which the Change in Control occurred had been
achieved, payable within 30 days of the Change in Control;
(b) the number of shares of common stock of the Company that would be
payable to Executive under the Company's Stock Incentive Plan provided, however,
that if the Change in Control involves a merger, acquisition or other corporate
restructuring where the Company is not the surviving entity (or survives as a
wholly-owned subsidiary of another entity), then, in lieu of such shares of
common stock of the Company, Executive shall be entitled to receive the
consideration he would have received in such transaction in exchange for such
shares of common stock; and provided, further, that the Company shall in any
case have the right to substitute cash for such shares of common stock of the
Company or merger consideration in an amount equal to the fair market value of
such shares or merger consideration as determined by the Company including:
(i) immediate vesting of all Bonus Stock Awards [as defined
Company's Stock Incentive Plan] held by Executive
(ii) immediate vesting of all outstanding Stock Options held by
Executive under the Xxxxxxxxxxx Industries, Inc. 1996 Stock
Options Plan or the Company's Stock Incentive Plan
(iii) immediate vesting of all awards of Restricted Stock held by
Executive under any Stock Award Agreements (as defined in
the Company's Stock Incentive Plan) with Executive and
Xxxxxxxxxxx Industries, Inc.
(iv) immediate vesting of all awards of Deferred Stock (as
defined in the Company's Stock Incentive Plan) (also known
as Restricted Stock Units) held by Executive under the
Company's Stock Incentive Plan and
(v) the exercise of any Stock Appreciation Right [(as defined in
the Company's Stock Incentive Plan) within 60 days of a
Change in Control as provided by section 7.2 of the Stock
Incentive Plan
Any distribution to be made under this Section 3 shall be made no
later than the 15th day of the third month following the Company's first taxable
year in which the Change in Control occurs.
4. GROSS-UP ON EXCESS PARACHUTE PAYMENT.
(a) If any benefit or payment by the Company or its subsidiaries to
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, including any acceleration of vesting
or payment) (a "Payment") is determined to be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are
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incurred by Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, being herein collectively referred to as
the "Excise Tax"), then Executive shall be entitled to receive an additional
payment (the "Gross-Up Payment") in an amount such that the net amount of such
additional payment retained by Executive, after payment of all federal, state
and local income and employment taxes (including, without limitation, any
federal, state, and local income and employment taxes and Excise Tax imposed on
the Gross-Up Payment), shall be equal to the Excise Tax imposed on the Payment.
The payment of any Gross-Up Payment shall be made no later than the 15th day of
the third month following the Company's first taxable year in which the Change
in Control occurs.
(b) Subject to the provisions of Section 4(c) hereto, all
determinations required to be made under this Section 4, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by an independent accounting firm of nationally recognized standing selected by
the Company and which is not serving as accountant or auditor for the Company or
the individual, entity or group effecting the Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within 15 business days of the receipt of the notice from
Executive that there has been a Payment or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any determination by the Accounting Firm shall be binding upon
the Company and Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments will not have
been made by the Company which should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 4(c) hereof and
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and the amount of the Underpayment shall be promptly paid by the Company to or
for the benefit of Executive.
(c) Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of a Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after Executive is informed in
writing of such claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. Executive shall not
pay such claim prior to the expiration of the 30-day period following the date
on which it gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including without
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limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the Company shall bear and
pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and
hold Executive harmless, on an after-tax basis, for any Excise Tax or
federal, state and local income and employment tax (including interest and
penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 4(c), the Company shall control all proceedings
taken in connection with such contest and, at its sole option, may pursue
or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at
its sole option, either direct Executive to pay the tax claimed and xxx for
a refund or to contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however,
that if the Company directs Executive to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to Executive,
on an after-tax basis, and shall hold Executive harmless from any Excise
Tax or federal, state or local income or employment tax (including interest
or penalties with respect thereto) imposed with respect to such advance or
with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of Executive with respect to which
such contested amount is claimed to be due is limited solely to such
contested amount. The Company's control of the contest, however, shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder, and Executive shall be entitled to settle or contest, as the
case may by, any other issue raised by the Internal Revenue Service or any
other taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 4(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of Section 4(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 4(c), a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
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(e) In the event that the Excise Tax is subsequently determined to be
less than initially determined by the Accounting Firm, Executive shall repay to
the Company at the time that the amount of such reduction in Excise Tax is
determined (but, if previously paid to the taxing authorities, not prior to the
time the amount of such reduction is refunded to Executive or otherwise realized
as a benefit by Executive) the portion of the Gross-Up Payment that would not
have been paid if the Excise Tax as subsequently determined had been applied in
initially calculating the Gross-Up Payment, with the amount of such repayment
determined by the Accounting Firm.
5. CONFIDENTIALITY; NON-COMPETITION.
(a) Executive shall not at any time without the prior approval of the
Company disclose to any person, firm, corporation or other entity any trade
secret, confidential customer information, or other proprietary information not
known within the industry or by the public generally regarding the business then
being conducted by the Company, including, without limitation, financial
information, marketing and sales information and business and strategic plans.
(b) Executive shall not at any time during the term of this Agreement
and within three years following the termination of his employment with the
Company, (i) solicit any persons who are employed by the Company to terminate
their employment with the Company, and (ii) directly or indirectly (either
individually or as an agent, employee, director, officer, stockholder, partner
or individual proprietor, consultant or as an investor who has made advances of
loan capital or contributions to equity capital), engage in any activity which
he knows (or reasonably should have known) to be competitive with the business
of the Company as then being carried on. Nothing in this Agreement, however,
shall prevent Executive from owning, as an investment, up to two percent (2%) of
the outstanding equity capital of any competitor of the Company, shares of which
are regularly traded on a national securities exchange or in over-the-counter
markets. The restrictions set forth in this Section 5 shall not apply in the
event of a termination of Executive's employment pursuant to Section 1.
6. SECTION 409A ACKNOWLEDGEMENT.
Executive acknowledges that he has been advised of Section 409A, which has
significantly changed the taxation of nonqualified deferred compensation plans
and arrangements. Under proposed regulations as of the date of this Agreement,
Executive has been advised that, if Executive is determined to be a "specified
employee," as defined by Section 409A or any similar law, Executive's severance
pay and other Termination benefits may be treated by the Internal Revenue
Service as providing "nonqualified deferred compensation," and therefore subject
to Section 409A. In that event, several provisions in Section 409A may affect
Executive's receipt of severance compensation, including the timing thereof.
These include, but are not limited to, a provision which requires that
distributions to "specified employees" of public companies on account of
separation from service may not be made earlier than six (6) months after the
effective date of separation. If applicable, failure to comply with Section 409A
can lead to immediate taxation of such deferrals, with interest calculated at a
penalty rate and a
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20% excise tax. As a result of the requirements imposed by the American Jobs
Creation Act of 2004, Executive agrees if Executive is covered by the provisions
of Section 409A or any similar law at the time of Executive's termination and if
severance payments are covered as "nonqualified deferred compensation" or
otherwise not exempt, any severance pay (and other benefits to the extent
applicable) due Executive at time of termination shall not be paid until a date
at least six (6) months after Executive's effective termination date. Executive
acknowledges that, notwithstanding anything contained herein to the contrary,
both Executive and the Company shall each be independently responsible for
accessing their own risks and liabilities under Section 409A that may be
associated with any payment made under the terms of this Agreement which may be
deemed to trigger Section 409A. To the extent applicable, Executive understands
and agrees that Executive shall have the responsibility for, and Executive
agrees to pay, any and all appropriate income tax or other tax obligations for
which Executive is individually responsible and/or related to receipt of any
benefits provided in this Agreement. Employee agrees to fully indemnify and hold
the Company harmless for any taxes, penalties, interest, cost or attorneys' fee
assessed against or incurred by the Company on account of such benefits having
been provided to Executive or based on any alleged failure to withhold taxes or
satisfy any claimed obligation. Executive understands and acknowledges that
neither the Company, nor any of its employees, attorneys, or other
representatives has provided or will provide Executive with any legal or
financial advice concerning taxes or any other matter, and that Executive has
not relied on any such advice in deciding whether to enter into this Agreement.
7. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Annual Base Salary" means the annualized amount of Executive's
rate of base salary in effect immediately before the Change in
Control or immediately before the date of Termination, whichever
is greater.
(b) "Cause" shall have the same meaning set forth in any current
employment agreement that the Executive has with the Company or
any of its subsidiaries.
(c) A "Change in Control" shall be deemed to occur on:
(i) the date that both
(A) any person, corporation, partnership, syndicate, trust,
estate or other group acting with a view to the acquisition,
holding or disposition of securities of the Company,
becomes, directly or indirectly, the beneficial owner, as
defined in Rule 13d-3 under the Securities Exchange Act of
1934 ("Beneficial Owner"), of securities of the Company
representing 35% or more of the voting power of all Company
securities having the right under ordinary circumstances to
vote at an election of the Board ("Voting Securities"),
other than by reason of (x) the acquisition of
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Company securities by the Company or any of its subsidiaries
or any employee benefit plan of the Company or any of its
subsidiaries, (y) the acquisition of Company securities
directly from the Company, or (z) the acquisition of Company
securities by one or more members of the Xxxxxxxxxxx Family
(which term shall mean [descendants of Xxxx X. Xxxxxxxxxxx
and their spouses, trusts primarily for their benefit or
entities controlled by them]), and
(B) members of the Xxxxxxxxxxx Family cease to be, directly
or indirectly, the Beneficial Owners of Voting Securities
having a voting power equal to or greater than that of such
person, corporation, partnership, syndicate, trust, estate
or group;
(ii) the consummation of a merger or consolidation of the Company
with another corporation unless
(A) the shareholders of the Company, immediately prior to
the merger or consolidation, beneficially own, immediately
after the merger or consolidation, shares entitling such
shareholders to 50% or more of the voting power of all
securities of the corporation surviving the merger or
consolidation having the right under ordinary circumstances
to vote at an election of directors in substantially the
same proportions as their ownership, immediately prior to
such merger or consolidation, of Voting Securities of the
Company;
(B) no person, corporation, partnership, syndicate, trust,
estate or other group beneficially owns, directly or
indirectly, 35% or more of the voting power of the
outstanding voting securities of the corporation resulting
from such merger or consolidation except to the extent that
such ownership existed prior to such merger or
consolidation; and
(C) the members of the Company's Board, immediately prior to
the merger or consolidation, constitute, immediately after
the merger or consolidation, a majority of the board of
directors of the corporation issuing cash or securities in
the merger;
(iii) the date on which a majority of the members of the Board
consist of persons other than Current Directors (which term
shall mean any member of the Board on the date hereof and
any member whose nomination or election has been approved by
a majority of Current Directors then on the Board);
(iv) the consummation of a sale or other disposition of all or
substantially all of the assets of the Company; or
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(v) the date of approval by the shareholders of the Company of a
plan of complete liquidation of the Company.
(d) "Good Reason" shall have the same meaning set forth in any
current employment agreement that the Executive has with the
Company or any of its subsidiaries
(e) "Normal Retirement Benefit" shall have the meaning set forth in
the Pension Plan.
(f) "Pension Plan" means the Xxxxxxxxxxx Industries Pension Plan of
January 1, 1994 as amended from time to time.
(g) "Section 409A" means Code Section 409A of the Internal Revenue
Code.
(h) "Short-Term Incentive Compensation" means the Incentive
Compensation payable under the Short-Term Incentive Compensation
Program, or any successor or other short-term incentive plan or
program.
(i) "Early Retirement Benefits" early retirement benefits shall have
the meaning set forth in the pension plan which defines the age
at which full, unreduced benefits are available without any early
retirement reduction being applied
(j) "Executive Life Insurance Bonus Program" shall mean a program
under which the Company pays the annual premium for a whole life
insurance policy on the life of Executive.
(k) "Supplemental Pension Plan" means the SERP or any successor
long-term supplemental pension plan or program or any other
commitment made by the company to provide retirement benefits in
addition to those provided by the pension plan trust.
(l) "Defined Contribution Accounts", "Matching Accounts", and
"Supplemental Contribution Accounts" shall have the meanings set
forth in the Company's Supplemental Executive Retirement Program
("SERP").
8. NOTICE.
(a) Any discharge or termination of Executive's employment pursuant to
Section 1 shall be communicated in a written notice to the other party hereto
setting forth the effective date of such discharge or termination (which date
shall not be more than 30 days after the date such notice is delivered) and, in
the case of a discharge for Cause or a termination for Good Reason the basis for
such discharge or termination.
(b) For purposes 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
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when delivered or mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed to 0000 Xxxxxxx 00 Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000 provided that all notices to the Company shall be
directed to the attention of the Board with a copy to Vice President and General
Counsel, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
9. NO DUTY TO MITIGATE. Executive is not required to seek other employment
or otherwise mitigate the amount of any payments to be made by the Company
pursuant to this Agreement.
10. ASSIGNMENT.
(a) This Agreement is personal to Executive and shall not be
assignable by Executive other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors. The Company shall require any successor to all
or substantially all of the business and/or assets of the Company, whether
direct or indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent as the Company would be required to perform it if
no such succession had taken place.
11. ARBITRATION. Any dispute or controversy arising under, related to or in
connection with this Agreement shall be settled exclusively by arbitration
before a single arbitrator in Cincinnati, Ohio, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
arbitrator's award shall be final and binding on all parties to this Agreement.
Judgment may be entered on an arbitrator's award in any court having competent
jurisdiction.
12. INTEGRATION. This Agreement supersedes and replaces any prior oral or
written agreements or understandings in respect of the matters addressed hereby.
13. AMENDMENT. This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives. This Agreement supersedes and replaces any
other agreement, document or understanding concerning the subject matter hereof.
14. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
15. WITHHOLDING. The Company may withhold from any amounts payable under
this Agreement such federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
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16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of Indiana without reference to principles
of conflict of laws.
17. ATTORNEY'S FEES. If any legal proceeding (whether in arbitration, at
trial or on appeal) is brought under or in connection with this Agreement, each
party shall pay its own expenses, including attorneys' fees.
18. TERM OF AGREEMENT. The term of this Agreement shall be one (1) year
commencing on the date hereof; provided however, that this Agreement shall be
automatically renewed for successive one-year terms commencing on each
anniversary of the date of this Agreement unless the Company shall have given
notice of non-renewal to Executive at least 30 days prior to the scheduled
termination date; and further provided that notwithstanding the foregoing, this
Agreement shall not terminate (i) within three years after a Change in Control
or (ii) during any period of time when a transaction which would result in a
Change in Control is pending or under consideration by the Board. The
termination of this Agreement shall not adversely affect any rights to which
Executive has become entitled prior to such termination. In addition, Section
5(a) shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
XXXXXXXXXXX INDUSTRIES, INC.
By
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Xxxxxxx X. xx Xxxxxxxxx, Vice President,
with authority from the Compensation and
Management Development Committee of the
Board of Directors
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Executive: Xxxx X. Xxxxxxx
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