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KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AGREEMENT, made and entered into as of the 15th day of
April, 1998, by and between Xxxx-Xxxxxx Corporation, a Wisconsin corporation
(hereinafter referred to as the "Company"), and Xxxxxx X. Xxxxxxxx (hereinafter
referred to as the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is currently employed by the Company in
a key capacity, and the Executive's services are valuable to the conduct of the
business of the Company;
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that circumstances may arise in which a change in control of the
Company occurs, through acquisition or otherwise, thereby causing uncertainty
about the Executive's future employment with the Company without regard to the
Executive's competence or past contributions, which uncertainty may result in
the loss of valuable services of the Executive to the detriment of the Company
and its shareholders, and the Company and the Executive wish to provide
reasonable security to the Executive against changes in the Executive's
relationship with the Company in the event of any such change in control;
WHEREAS, the Company and the Executive desire that any
proposal for a change in control or acquisition of the Company will be
considered by the Executive objectively and with reference only to the best
interests of the Company and its shareholders; and
WHEREAS, the Executive will be in a better position to
consider the Company's best interests if the Executive is afforded reasonable
security, as provided in this Agreement, against altered conditions of
employment which could result from any such change in control or acquisition.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto
mutually covenant and agree as follows:
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1. Definitions. The following terms are used in this
Agreement as defined in Exhibit A:
Act Covered Termination
Accrued Benefits Effective Date
Affiliate and Associate Employer
Annual Cash Compensation Good Reason
Cause Normal Retirement Date
Change in Control Notice of Termination
Code Person
Competitive Activity Termination Date
2. Termination or Cancellation Prior to the Effective
Date. The Employer and the Executive shall each retain the right to terminate
the employment of the Executive at any time prior to the Effective Date. If
the Executive's employment is terminated prior to the Effective Date, then this
Agreement shall be terminated and cancelled and of no further force or effect
and any and all rights and obligations of the parties hereunder shall cease.
In addition, this Agreement shall terminate upon the Executive ceasing to be an
employee of the Employer prior to a Change in Control unless the Executive can
reasonably demonstrate that such change in status occurred under circumstances
described in clause (iii)(B)(1) or (iii)(B)(2) of the definition of "Effective
Date" in Exhibit A.
3. Employment Period. If the Executive is employed by
the Employer on the Effective Date, then the Company will, or will cause the
Employer to, continue thereafter to employ the Executive during the Employment
Period (as hereinafter defined), and the Executive will remain in the employ of
the Employer, in accordance with and subject to the terms and provisions of
this Agreement. For purposes of this Agreement, the term "Employment Period"
means a period (i) commencing on the Effective Date, and (ii) ending at 11:59
p.m. Milwaukee Time on the earlier of the first anniversary of such date or the
Executive's Normal Retirement Date.
4. Duties. During the Employment Period, the Executive
shall, in the most significant capacities and positions held by the Executive
at any time during the 180-day period preceding the Effective Date or in such
other capacities and positions as may be agreed to by the Company and the
Executive in writing, devote the Executive's best efforts and all of the
Executive's business time, attention and skill to the business and affairs of
the Employer, as such business and affairs now exist and as they may hereafter
be conducted.
5. Compensation. During the Employment Period, the
Executive shall be compensated as follows:
(a) The Executive shall receive, at reasonable intervals
(but not less often than monthly) and in accordance with such standard policies
as may be in effect immediately prior to the Effective Date, an annual base
salary in cash equivalent of not less than twelve times the
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Executive's highest monthly base salary (which shall include any amounts
credited to the Executive for the purchase of annuity contracts and related tax
offset bonuses) for the twelve-month period immediately preceding the month in
which the Effective Date occurs or, if higher, an annual base salary at the
rate in effect immediately prior to the Effective Date (which base salary
shall, unless otherwise agreed in writing by the Executive, include the current
receipt by the Executive of any amounts which, prior to the Effective Date, the
Executive had elected to defer, whether such compensation is deferred under
Section 401(k) of the Code or otherwise), subject to upward adjustment as
provided in Section 6 (such salary amount as adjusted upward from time to time
is hereafter referred to as the "Annual Base Salary").
(b) The Executive shall receive fringe benefits at least
equal in value to those provided for the Executive at any time during the
180-day period immediately preceding the Effective Date or, if more favorable
to the Executive, those provided generally at any time after the Effective Date
to any executives of the Company and its Affiliates of comparable status and
position to the Executive. The Executive shall be reimbursed, at such
intervals and in accordance with such standard policies that are most favorable
to the Executive that were in effect at any time during the 180-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to any
executives of the Company and its Affiliates of comparable status and position
to the Executive, for any and all monies advanced in connection with the
Executive's employment for reasonable and necessary expenses incurred by the
Executive on behalf of the Company and its Affiliates, including travel
expenses.
(c) The Executive and/or the Executive's family, as the
case may be, shall be included, to the extent eligible thereunder (which
eligibility shall not be conditioned on the Executive's salary grade or on any
other requirement that excludes executives of the Company and its Affiliates of
comparable status and position to the Executive unless such exclusion was in
effect for such plan or an equivalent plan on the date 180 days prior to the
Effective Date), in any and all welfare benefit plans, practices, policies and
programs providing benefits for the Company's salaried employees in general or,
if more favorable to the Executive, to any executives of the Company and its
Affiliates of comparable status and position to the Executive, including but
not limited to group life insurance, hospitalization, medical and dental plans;
provided, that, (i) in no event shall the aggregate level of benefits under
such plans, practices, policies and programs in which the Executive is included
be less than the aggregate level of benefits under plans, practices, policies
and programs of the type referred to in this Section 5(c) in which the
Executive was participating at any time during the 180-day period immediately
preceding the Effective Date and (ii) in no event shall the aggregate level of
benefits under such plans, practices, policies and programs be less than the
aggregate level of benefits under plans, practices, policies and programs of
the type referred to in this Section 5(c) provided at any time after the
Effective Date to any executive of the Company and its Affiliates of comparable
status and position to the Executive.
(d) The Executive shall annually be entitled to not less
than the amount of paid vacation and not fewer than the number of paid holidays
to which the Executive was entitled
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annually at any time during the 180-day period immediately preceding the
Effective Date or such greater amount of paid vacation and number of paid
holidays as may be made available annually to the Executive or any other
executive of the Company and its Affiliates of comparable status and position
to the Executive at any time after the Effective Date.
(e) The Executive shall be included in all plans providing
additional benefits to any executives of the Company and its Affiliates of
comparable status and position to the Executive, including but not limited to
deferred compensation, split-dollar life insurance, retirement, supplemental
retirement, stock option, stock appreciation, stock bonus and similar or
comparable plans; provided, that, (i) in no event shall the aggregate level of
benefits under such plans be less than the aggregate level of benefits under
plans of the type referred to in this Section 5(e) in which the Executive was
participating at any time during the 180-day period immediately preceding the
Effective Date; (ii) in no event shall the aggregate level of benefits under
such plans be less than the aggregate level of benefits under plans of the type
referred to in this Section 5(e) provided at any time after the Effective Date
to any executive of the Company and its Affiliates of comparable status and
position to the Executive; and (iii) the Company's obligation to include the
Executive in bonus or incentive compensation plans shall be determined by
Section 5(f).
(f) To assure that the Executive will have an opportunity
to earn incentive compensation after the Effective Date, the Executive shall be
included in a bonus plan of the Company that shall satisfy the standards
described below (the "Bonus Plan"). Bonuses under the Bonus Plan shall be
payable with respect to achieving such financial or other goals reasonably
related to the business of the Company as the Company shall establish (the
"Goals"), all of which Goals shall be attainable, prior to the end of the
Employment Period, with approximately the same degree of probability as the
goals under the Employer's annual incentive plan currently in effect, or the
successor to such plan, in the form most favorable to the Executive that was in
effect at any time during the 180-day period prior to the Effective Date (the
"Existing Plan") and in view of the Company's existing and projected financial
and business circumstances applicable at the time. The amount of the bonus
(the "Bonus Amount") that the Executive is eligible to earn under the Bonus
Plan shall be no less than the amount of the Executive's highest maximum
potential award under the Existing Plan at any time during the 180-day period
prior to the Effective Date or, if higher, any maximum potential award under
the Bonus Plan or any other bonus or incentive compensation plan in effect
after the Effective Date for the Executive or for any executive of the Company
and its Affiliates of comparable status and position to the Executive (such
bonus amount herein referred to as the "Targeted Bonus"), and if the Goals are
not achieved (and, therefore, the entire Targeted Bonus is not payable), then
the Bonus Plan shall provide for a payment of a Bonus Amount not less than a
portion of the Targeted Bonus reasonably related to that portion of the Goals
that were achieved. Payment of the Bonus Amount (i) shall be in cash, unless
otherwise agreed by the Executive, and (ii) shall not be affected by any
circumstance occurring subsequent to the end of the Employment Period,
including termination of the Executive's employment.
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6. Annual Compensation Adjustments. During the
Employment Period, the Board of Directors of the Company (or an appropriate
committee thereof) will consider and appraise, at least annually, the
contributions of the Executive to the Employer, and in accordance with the
Company's practice prior to the Effective Date, due consideration shall be
given, at least annually, to the upward adjustment of the Executive's Annual
Base Salary (i) commensurate with increases generally given to other executives
of the Company and its Affiliates of comparable status and position to the
Executive, and (ii) as the scope of the Company's operations or the Executive's
duties expand.
7. Termination During Employment Period.
(a) Right to Terminate. During the Employment Period, (i)
the Company shall be entitled to terminate the Executive's employment (A) for
Cause, (B) by reason of the Executive's disability pursuant to Section 11, or
(C) for any other reason, and (ii) the Executive shall be entitled to terminate
the Executive's employment for any reason. Any such termination shall be
subject to the procedures set forth in Section 12 and shall be subject to any
consequences of such termination set forth in this Agreement. Any termination
of the Executive's employment during the Employment Period by the Employer
shall be deemed a termination by the Company for purposes of this Agreement.
(b) Termination for Cause or Without Good Reason. If
there is a Covered Termination for Cause or due to the Executive's voluntarily
terminating the Executive's employment other than for Good Reason, then the
Executive shall be entitled to receive only Accrued Benefits.
(c) Termination Giving Rise to a Termination Payment. If
there is a Covered Termination by the Executive for Good Reason, or by the
Company other than by reason of (i) death, (ii) disability pursuant to Section
11, or (iii) Cause, then the Executive shall be entitled to receive, and the
Company shall promptly pay, Accrued Benefits and, in lieu of further base
salary for periods following the Termination Date, as liquidated damages and
additional severance pay and in consideration of the covenant of the Executive
set forth in Section 13(a), the Termination Payment pursuant to Section 8(a).
8. Payments Upon Termination.
(a) Termination Payment. (i) Subject to the limits set
forth in Section 8(a)(ii), for purposes of this Agreement, the
"Termination Payment" shall be an amount equal to the Annual Cash
Compensation multiplied by the number of years or fractional portion
thereof remaining in the Employment Period determined as of the
Termination Date, except that the Termination Payment shall not be less
than the amount of Annual Cash Compensation. The Termination Payment
shall be paid to the Executive in cash equivalent not later than ten
business days after the Termination Date. The Executive shall not be
required to mitigate the amount of the Termination Payment by securing
other employment or otherwise, nor will such Termination Payment be
reduced
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by reason of the Executive securing other employment or for any other
reason. The Termination Payment shall be in addition to any other
severance payments to which the Executive is entitled under the
Company's severance policies and practices in the form most favorable
to the Executive that were in effect at any time during the 180-day
period prior to the Effective Date.
(ii) Notwithstanding any other provision of this
Agreement, if any portion of the Termination Payment or any other
payment under this Agreement, or under any other agreement with or plan
of the Company or the Employer (in the aggregate "Total Payments"),
would constitute an "excess parachute payment," then the Total Payments
to be made to the Executive shall be reduced such that the value of the
aggregate Total Payments that the Executive is entitled to receive
shall be One Dollar ($1) less than the maximum amount which the
Executive may receive without becoming subject to the tax imposed by
Section 4999 of the Code (or any successor provision) or which the
Company may pay without loss of deduction under Section 280G(a) of the
Code (or any successor provision). For purposes of this Agreement, the
terms "excess parachute payment" and "parachute payments" shall have
the meanings assigned to them in Section 280G of the Code (or any
successor provision), and such "parachute payments" shall be valued as
provided therein. Present value for purposes of this Agreement shall
be calculated in accordance with Section 1274(b)(2) of the Code (or any
successor provision). Within sixty days following delivery of the
Notice of Termination or notice by the Company to the Executive of its
belief that there is a payment or benefit due the Executive which will
result in an excess parachute payment as defined in Section 280G of the
Code (or any successor provision), the Executive and the Company, at
the Company's expense, shall obtain the opinion (which need not be
unqualified) of nationally recognized tax counsel selected by the
Company's independent auditors and acceptable to the Executive in the
Executive's sole discretion, which sets forth (A) the amount of the
Base Period Income, (B) the amount and present value of Total Payments
and (C) the amount and present value of any excess parachute payments
without regard to the limitations of this Section 8(a)(ii). As used in
this Section 8(a)(ii), the term "Base Period Income" means an amount
equal to the Executive's "annualized includible compensation for the
base period" as defined in Section 280G(d)(1) of the Code (or any
successor provision). For purposes of such opinion, the value of any
noncash benefits or any deferred payment or benefit shall be determined
by the Company's independent auditors in accordance with the principles
of Sections 280G(d)(3) and (4) of the Code (or any successor
provisions), which determination shall be evidenced in a certificate of
such auditors addressed to the Company and the Executive. Such opinion
shall be dated as of the Termination Date and addressed to the Company
and the Executive and shall be binding upon the Company and the
Executive. If such opinion determines that there would be an excess
parachute payment, then the Termination Payment hereunder or any other
payment determined by such counsel to be includible in Total Payments
shall be reduced or eliminated as specified by the Executive in writing
delivered to the Company within thirty days of the Executive's receipt
of such opinion or, if the Executive fails to so notify the Company,
then as the Company shall reasonably determine, so that under
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the bases of calculations set forth in such opinion there will be no
excess parachute payment. If such legal counsel so requests in
connection with the opinion required by this Section, the Executive and
the Company shall obtain, at the Company's expense, and the legal
counsel may rely on in providing the opinion, the advice of a firm of
recognized executive compensation consultants as to the reasonableness
of any item of compensation to be received by the Executive.
Notwithstanding the foregoing, the provisions of this Section 8(a)(ii),
including the calculations, notices and opinions provided for herein,
shall be based upon the conclusive presumption that the following are
reasonable: (1) the compensation and benefits provided for in Section 5
and (2) any other compensation, including but not limited to the
Accrued Benefits, earned prior to the Termination Date by the Executive
pursuant to the Company's compensation programs if such payments would
have been made in the future in any event, even though the timing of
such payment is triggered by the Change in Control or the Termination
Date. If the provisions of Sections 280G and 4999 of the Code (or any
successor provisions) are repealed without succession, then this
Section 8(a)(ii) shall be of no further force or effect.
(b) Additional Benefits. If there is a Covered
Termination and the Executive is entitled to Accrued Benefits and the
Termination Payment, then the Executive shall be entitled to the following
additional benefits:
(i) Until the earlier of the end of the
Employment Period or such time as the Executive has obtained new
employment and is covered by benefits which in the aggregate are at
least equal in value to the following benefits, the Executive shall
continue to be covered, at the expense of the Company, by the most
favorable life insurance, hospitalization, medical and dental coverage
and other welfare benefits provided to the Executive and the
Executive's family during the 180-day period immediately preceding the
Effective Date or at any time thereafter or, if more favorable to the
Executive, coverage as was required hereunder with respect to the
Executive immediately prior to the date Notice of Termination is given.
(ii) The Executive shall receive, at the expense
of the Company, outplacement services, on an individualized basis at a
level of service commensurate with the Executive's most senior status
with the Company during the 180-day period prior to the Effective Date
(or, if higher, at any time after the Effective Date), provided by a
nationally recognized executive placement firm selected by the Company
with the consent of the Executive, which consent will not be
unreasonably withheld; provided that the cost to the Company of such
services shall not exceed 15% of the Executive's Annual Base Salary.
(iii) The Company shall bear up to $10,000 in the
aggregate of fees and expenses of consultants and/or legal or
accounting advisors engaged by the Executive to advise the Executive as
to matters relating to the computation of benefits due and payable
under this Section 8.
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9. Death. (a) Except as provided in Section 9(b), in
the event of a Covered Termination due to the Executive's death, the
Executive's estate, heirs and beneficiaries shall receive all the Executive's
Accrued Benefits through the Termination Date.
(b) If the Executive dies after a Notice of Termination is
given (i) by the Company or (ii) by the Executive for Good Reason, then the
Executive's estate, heirs and beneficiaries shall be entitled to the benefits
described in Section 9(a) and, subject to the provisions of this Agreement, to
such Termination Payment to which the Executive would have been entitled had
the Executive lived. In such event, the Termination Date shall be thirty days
following the giving of the Notice of Termination, subject to extension
pursuant to the definition of "Termination Date" in Exhibit A.
10. Retirement. If, during the Employment Period, the
Executive and the Employer shall execute an agreement providing for the early
retirement of the Executive from the Employer, or the Executive shall otherwise
give notice that the Executive is voluntarily choosing to retire early from the
Employer, then the Executive shall receive Accrued Benefits through the
Termination Date; provided, that if the Executive's employment is terminated by
the Executive for Good Reason or by the Company other than by reason of death,
disability or Cause and the Executive also, in connection with such
termination, elects voluntary early retirement, then the Executive shall also
be entitled to receive a Termination Payment pursuant to Section 8(a).
11. Termination for Disability. If, during the Employment
Period, as a result of the Executive's disability due to physical or mental
illness or injury (regardless of whether such illness or injury is
job-related), the Executive shall have been absent from the Executive's duties
hereunder on a full-time basis for a period of 182 days and, within thirty days
after the Company notifies the Executive in writing that it intends to
terminate the Executive's employment (which notice shall not constitute the
Notice of Termination contemplated below), the Executive shall not have
returned to the performance of the Executive's duties hereunder on a full-time
basis, then the Company may terminate the Executive's employment for purposes
of this Agreement pursuant to a Notice of Termination. If the Executive's
employment is terminated on account of the Executive's disability in accordance
with this Section, then the Executive shall receive Accrued Benefits in
accordance with Section 8(a) and shall remain eligible for all benefits
provided by any long term disability programs of the Employer in effect at the
time the Company sends notice to the Executive of its intent to terminate
pursuant to this Section.
12. Termination Notice and Procedure. (a) Any
termination of the Executive's employment during the Employment Period by the
Company or the Executive (other than a termination of the Executive's
employment referenced in the second sentence of the definition of "Effective
Date" in Exhibit A) shall be communicated by written Notice of Termination to
the Executive, if such Notice is given by the Company, and to the Company, if
such Notice is given by the Executive, all in accordance with the following
procedures and those set forth in Section 22:
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(i) If such termination is for disability, Cause or Good
Reason, the Notice of Termination shall indicate in reasonable detail the facts
and circumstances alleged to provide a basis for such termination.
(ii) Any Notice of Termination by the Company shall have
been approved, prior to the giving thereof to the Executive, by a resolution
duly adopted by a majority of the directors of the Company (or any successor
corporation) then in office, a copy of which shall accompany the Notice.
(iii) If the Notice is given by the Executive for Good
Reason, then the Executive may cease performing the Executive's duties
hereunder on or after the date 15 days after the delivery of Notice of
Termination (unless the Notice of Termination is based upon clause (vii) of the
definition of "Good Reason" in Exhibit A, in which case the Executive may cease
performing his duties at the time the Executive's employment is terminated) and
shall in any event cease employment on the Termination Date, if any, arising
from the delivery of such Notice. If the Notice is given by the Company, then
the Executive may cease performing the Executive's duties hereunder on the date
of receipt of the Notice of Termination, subject to the Executive's rights
hereunder.
(iv) The recipient of any Notice of Termination shall
personally deliver or mail in accordance with Section 22 written notice of any
dispute relating to such Notice of Termination to the party giving such Notice
within fifteen days after receipt thereof. After the expiration of such fifteen
days, the contents of the Notice of Termination shall become final and not
subject to dispute.
Notwithstanding the foregoing, (A) if the Executive terminates the Executive's
employment after a Change in Control without complying with this Section 12,
then the Executive will be deemed to have voluntarily terminated the
Executive's employment other than for Good Reason and deemed to have delivered
a written Notice of Termination to that effect to the Company as of the date of
such termination and (B) if the Company terminates the Executive's employment
after a Change in Control without complying with this Section 12, then the
Company will be deemed to have terminated the Executive's employment other than
by reason of death, disability or Cause and the Company will be deemed to have
delivered a written Notice of Termination to that effect to the Executive as of
the date of such termination. Under circumstances described in clause (B)
above, the Executive may, but shall not be obligated to, also deliver a Notice
of Termination based upon clause (vii) of the definition of "Good Reason" in
Exhibit A for the purpose of subjecting such Notice to Section 12(a)(iv).
(b) If a Change in Control occurs and the Executive's
employment with the Employer terminates (whether by the Company, the Executive
or otherwise) within 180 days prior to the Change in Control, then the
Executive may assert that such termination is a Covered Termination by sending
a written Notice of Termination to the Company at any time prior to the first
anniversary of the Change in Control in accordance with the procedures set
forth in this Section 12(b) and those set forth in Section 22. If the
Executive asserts that the Executive
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terminated the Executive's employment for Good Reason or that the Company
terminated the Executive's employment other than for disability or Cause, then
the Notice of Termination shall indicate in reasonable detail the facts and
circumstances alleged to provide a basis for such assertions. The Company
shall personally deliver or mail in accordance with Section 22 written notice
of any dispute relating to such Notice of Termination to the Executive within
fifteen days after receipt thereof. After the expiration of such fifteen days,
the contents of the Notice of Termination shall become final and not subject to
dispute.
13. Further Obligations of the Executive.
(a) Competition. The Executive agrees that, in the event
of any Covered Termination where the Executive is entitled to (and receives)
Accrued Benefits and the Termination Payment, the Executive shall not, for a
period of three months after the Termination Date, without the prior written
approval of the Company's Board of Directors, engage in any Competitive
Activity.
(b) Confidentiality. During and following the Executive's
employment by the Employer, the Executive shall hold in confidence and not
directly or indirectly disclose or use or copy or make lists of any
confidential information or proprietary data of the Company (including that of
the Employer), except to the extent authorized in writing by the Board of
Directors of the Company or required by any court or administrative agency,
other than to an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of duties as an executive of the Company or the Employer.
Confidential information shall not include any information known generally to
the public or any information of a type not otherwise considered confidential
by persons engaged in the same business or a business similar to that of the
Company. All records, files, documents and materials, or copies thereof,
relating to the business of the Company which the Executive shall prepare, or
use, or come into contact with, shall be and remain the sole property of the
Company and shall be promptly returned to the Company upon termination of
employment with the Employer.
14. Expenses and Interest. If, after the Effective Date,
(i) a dispute arises with respect to the enforcement of the Executive's rights
under this Agreement, (ii) any legal or arbitration proceeding shall be brought
to enforce or interpret any provision contained herein or to recover damages
for breach hereof, or (iii) any tax audit or proceeding is commenced that is
attributable in part to the application of Section 4999 of the Code, in any
case so long as the Executive is not acting in bad faith, then the Company
shall reimburse the Executive for any reasonable attorneys' fees and necessary
costs and disbursements incurred as a result of such dispute, legal or
arbitration proceeding or tax audit or proceeding ("Expenses"), and prejudgment
interest on any money judgment or arbitration award obtained by the Executive
calculated at the rate of interest announced by Firstar Bank Milwaukee, N.A.,
Milwaukee, Wisconsin, from time to time as its prime or base lending rate from
the date that payments to the Executive should have been made under this
Agreement. Within ten days after the Executive's written request therefor, the
Company shall pay to the Executive, or such other
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person or entity as the Executive may designate in writing to the Company, the
Executive's reasonable Expenses in advance of the final disposition or
conclusion of any such dispute, legal or arbitration proceeding.
15. Payment Obligations Absolute. The Company's
obligation during and after the Employment Period to pay the Executive the
amounts and to make the benefit and other arrangements provided herein shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, any setoff, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or anyone else.
Except as provided in Section 14, all amounts payable by the Company hereunder
shall be paid without notice or demand. Each and every payment made hereunder
by the Company shall be final, and the Company will not seek to recover all or
any part of such payment from the Executive, or from whomsoever may be entitled
thereto, for any reason whatsoever.
16. Successors. (a) If the Company sells, assigns or
transfers all or substantially all of its business and assets to any Person or
if the Company merges into or consolidates or otherwise combines (where the
Company does not survive such combination) with any Person (any such event, a
"Sale of Business"), then the Company shall assign all of its right, title and
interest in this Agreement as of the date of such event to such Person, and the
Company shall cause such Person, by written agreement in form and substance
reasonably satisfactory to the Executive, to expressly assume and agree to
perform from and after the date of such assignment all of the terms, conditions
and provisions imposed by this Agreement upon the Company. Failure of the
Company to obtain such agreement prior to the effective date of such Sale of
Business shall be a breach of this Agreement constituting "Good Reason"
hereunder, except that for purposes of implementing the foregoing, the date
upon which such Sale of Business becomes effective shall be deemed the
Termination Date. In case of such assignment by the Company and of assumption
and agreement by such Person, as used in this Agreement, "Company" shall
thereafter mean such Person which executes and delivers the agreement provided
for in this Section 16 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law, and this Agreement shall
inure to the benefit of, and be enforceable by, such Person. The Executive
shall, in the Executive's discretion, be entitled to proceed against any or all
of such Persons, any Person which theretofore was such a successor to the
Company (as defined in the first paragraph of this Agreement) and the Company
(as so defined) in any action to enforce any rights of the Executive hereunder.
Except as provided in this Subsection, this Agreement shall not be assignable
by the Company. This Agreement shall not be terminated by the voluntary or
involuntary dissolution of the Company.
(b) This Agreement and all rights of the Executive shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs and beneficiaries. All
amounts payable to the Executive under Sections 7, 8, 9, 10, 11 and 14 if the
Executive had lived shall be paid, in the event of the Executive's death, to
the Executive's estate, heirs and representatives; provided, however, that the
foregoing shall not be construed to modify any terms of any benefit plan of the
Employer, as such terms
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are in effect on the Effective Date, that expressly govern benefits under such
plan in the event of the Executive's death.
17. Severability. The provisions of this Agreement shall
be regarded as divisible, and if any of said provisions or any part hereof are
declared invalid or unenforceable by a court of competent jurisdiction, then
the validity and enforceability of the remainder of such provisions or parts
hereof and the applicability thereof shall not be affected thereby.
18. Amendment. This Agreement may not be amended or
modified at any time except by written instrument executed by the Company and
the Executive.
19. Withholding. The Employer shall be entitled to
withhold from amounts to be paid to the Executive hereunder any federal, state
or local withholding or other taxes or charges which it is from time to time
required to withhold; provided, that the amount so withheld shall not exceed
the minimum amount required to be withheld by law. The Employer shall be
entitled to rely on an opinion of nationally recognized tax counsel if any
question as to the amount or requirement of any such withholding shall arise.
20. Certain Rules of Construction. No party shall be
considered as being responsible for the drafting of this Agreement for the
purpose of applying any rule construing ambiguities against the drafter or
otherwise. No draft of this Agreement shall be taken into account in
construing this Agreement. Any provision of this Agreement which requires an
agreement in writing shall be deemed to require that the writing in question be
signed by the Executive and an authorized representative of the Company.
21. Governing Law; Resolution of Disputes. (a) This
Agreement and the rights and obligations hereunder shall be governed by and
construed in accordance with the internal laws of the State of Wisconsin
(excluding any choice of law rules that may direct the application of the laws
of another jurisdiction) except that Section 21(b) shall be construed in
accordance with the Federal Arbitration Act if arbitration is chosen by the
Executive as the method of dispute resolution.
(b) Any dispute arising out of this Agreement shall, at
the Executive's election, be determined by arbitration under the rules of the
American Arbitration Association then in effect (but subject to any evidentiary
standards set forth in this Agreement), in which case both parties shall be
bound by the arbitration award, or by litigation. Whether the dispute is to be
settled by arbitration or litigation, the venue for the arbitration or
litigation shall be Milwaukee, Wisconsin or, at the Executive's election, if
the Executive is no longer residing or working in the Milwaukee, Wisconsin
metropolitan area, in the judicial district encompassing the city in which the
Executive resides; provided, that, if the Executive is not then residing in the
United States, the election of the Executive with respect to such venue shall
be either Milwaukee, Wisconsin or in the judicial district encompassing that
city in the United States among the thirty cities having the largest population
(as determined by the most recent United States Census data available at the
Termination Date) that is closest to the Executive's residence.
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The parties consent to personal jurisdiction in each trial court in the
selected venue having subject matter jurisdiction notwithstanding their
residence or situs, and each party irrevocably consents to service of process
in the manner provided hereunder for the giving of notices.
22. Notice. Notices given pursuant to this Agreement
shall be in writing and, except as otherwise provided by Section 12(a)(iii),
shall be deemed given when actually received by the Executive or actually
received by the Company's Secretary or any officer of the Company other than
the Executive. If mailed, such notices shall be mailed by United States
registered or certified mail, return receipt requested, addressee only, postage
prepaid, if to the Company, to Xxxx-Xxxxxx Corporation, Attention: Secretary
(or, if the Executive is then Secretary, to the Chief Executive Officer), 0000
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx 00000, or if to the Executive, at the
address set forth below the Executive's signature to this Agreement, or to such
other address as the party to be notified shall have theretofore given to the
other party in writing.
23. Additional Payment. (a) If, notwithstanding the
provisions of Section 8(a)(ii), but subject to subsection (b), it is ultimately
determined by a court or pursuant to a final determination by the Internal
Revenue Service that any portion of Total Payments is subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Code (or any successor provision),
then the Company shall pay to the Executive an additional amount (the "Gross-Up
Payment") such that the net amount retained by the Executive after deduction of
any Excise Tax and any interest charges or penalties in respect of the
imposition of such Excise Tax (but not any federal, state or local income tax)
on the Total Payments, and any federal, state and local income tax and Excise
Tax upon the payment provided for by this Section 23 shall be equal to the
Total Payments. For purposes of determining the amount of the Gross-Up Payment,
the Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the highest
marginal rates of taxation in the state and locality of the Executive's
domicile for income tax purposes on the date the Gross-Up Payment is made, net
of the maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
(b) If legislation is enacted that would require the
Company's shareholders to approve this Agreement, prior to a Change in Control,
due solely to the provision contained in subsection (a) of this Section 23,
then
(i) from and after such time as shareholder approval would
be required, until shareholder approval is obtained as required by such
legislation, subsection (a) shall be of no force and effect;
(ii) if the Company seeks shareholder approval of any other
agreement providing similar benefits to any other executive of the
Company, then the Company shall seek shareholder approval of this
Agreement at the same shareholders' meeting or meetings at which the
shareholders consider any such other agreement; and
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(iii) the Company and the Executive shall use their best
efforts to consider and agree in writing upon an amendment to this
Section 23 such that, as amended, this Subsection would provide the
Executive with the benefits intended to be afforded to the Executive by
subsection (a) without requiring shareholder approval.
24. No Waiver. The Executive's or the Company's failure
to insist upon strict compliance with any provision of this Agreement or the
failure to assert any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to terminate
employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
25. Headings. The headings herein contained are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
XXXX-XXXXXX CORPORATION
By: /s/ X. X. Xxxxxxx
------------------------------------
X. X. Xxxxxxx
President and Chief Executive Officer
Attest: /s/ X. X. XxXxxxxxx
------------------------------------
X. X. XxXxxxxxx
Secretary
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx
000 Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
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15
Exhibit A
CERTAIN DEFINED TERMS
For purposes of this Agreement,
(a) Act. The term "Act" means the Securities Exchange
Act of 1934, as amended.
(b) Accrued Benefits. The term "Accrued Benefits" shall
include the following amounts, payable as described herein: (i) all base
salary for the time period ending with the Termination Date; (ii) reimbursement
for any and all monies advanced in connection with the Executive's employment
for reasonable and necessary expenses incurred by the Executive on behalf of
the Company and its Affiliates for the time period ending with the Termination
Date; (iii) any and all other cash earned through the Termination Date and
deferred at the election of the Executive or pursuant to any deferred
compensation plan then in effect; (iv) notwithstanding any provision of any
bonus or incentive compensation plan applicable to the Executive, a lump sum
amount, in cash, equal to the sum of (A) any bonus or incentive compensation
that has been allocated or awarded to the Executive for a fiscal year or other
measuring period under the plan that ends prior to the Termination Date but has
not yet been paid (pursuant to Section 5(f) or otherwise) and (B) a pro rata
portion to the Termination Date of the aggregate value of all contingent bonus
or incentive compensation awards to the Executive for all uncompleted periods
under the plan calculated as to each such award as if the Goals with respect to
such bonus or incentive compensation award had been attained; and (v) all other
payments and benefits to which the Executive (or in the event of the
Executive's death, the Executive's surviving spouse or other beneficiary) may
be entitled as compensatory fringe benefits or under the terms of any benefit
plan of the Employer, including severance payments under the Employer's
severance policies and practices in the form most favorable to the Executive
that were in effect at any time during the 180-day period prior to the
Effective Date. Payment of Accrued Benefits shall be made promptly in
accordance with the Employer's prevailing practice with respect to clauses (i)
and (ii) or, with respect to clauses (iii), (iv) and (v), pursuant to the terms
of the benefit plan or practice establishing such benefits.
(c) Affiliate and Associate. The terms "Affiliate" and
"Associate" shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations of the Act.
(d) Annual Cash Compensation. The term "Annual Cash
Compensation" shall mean the sum of (A) the Executive's Annual Base Salary,
plus (B) the highest of (1) the highest annual bonus or incentive compensation
award earned by the Executive under any cash bonus or incentive compensation
plan of the Company or any of its Affiliates during the three complete fiscal
years of the Company immediately preceding the Termination Date or, if more
favorable to the Executive, during the three complete fiscal years of the
Company immediately preceding
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the Effective Date; (2) the Executive's bonus or incentive compensation
Targeted Bonus for the fiscal year in which the Termination Date occurs; or (3)
the highest average annual bonus and/or incentive compensation earned during
the three complete fiscal years of the Company immediately preceding the
Termination Date (or, if more favorable to the Executive, during the three
complete fiscal years of the Company immediately preceding the Effective Date)
under any cash bonus or incentive compensation plan of the Company or any of
its Affiliates by the group of executives of the Company and its Affiliates
participating under such plan during such fiscal years at a status or position
comparable to that at which the Executive participated or would have
participated pursuant to the Executive's most senior position at any time
during the 180 days preceding the Effective Date or thereafter until the
Termination Date.
(e) Cause. The Company may terminate the Executive's
employment after the Effective Date for "Cause" only if the conditions set
forth in paragraphs (i) and (ii) have been met and the Company otherwise
complies with this Agreement:
(i) (A) the Executive has committed any act of fraud,
embezzlement or theft in connection with the Executive's duties as an
Executive or in the course of employment with the Company and/or its
subsidiaries; (B) the Executive has willfully and continually failed to
perform substantially the Executive's duties with the Company or any of
its Affiliates (other than any such failure resulting from incapacity
due to physical or mental illness or injury, regardless of whether such
illness or injury is job- related) for an appropriate period, which
shall not be less than 30 days, after the Chief Executive Officer of
the Company (or, if the Executive is then Chief Executive Officer, the
Board) has delivered a written demand for performance to the Executive
that specifically identifies the manner in which the Chief Executive
Officer (or the Board, as the case may be) believes the Executive has
not substantially performed the Executive's duties; (C) the Executive
has willfully engaged in illegal conduct or gross misconduct that is
materially and demonstrably injurious to the Company; (D) the Executive
has willfully and wrongfully disclosed any trade secret or other
confidential information of the Company or any of its Affiliates; or
(E) the Executive has engaged in any Competitive Activity; and in any
such case the act or omission shall have been determined by the Board
to have been materially harmful to the Company and its subsidiaries
taken as a whole.
For purposes of this provision, (1) no act or failure
to act on the part of the Executive shall be considered "willful"
unless it is done, or omitted to be done, by the Executive in bad faith
or without reasonable belief that the Executive's action or omission
was in the best interests of the Company and (2) any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted
by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the
Company.
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(ii) (A) The Company terminates the Executive's
employment by delivering a Notice of Termination to the Executive, (B)
prior to the time the Company has terminated the Executive's employment
pursuant to a Notice of Termination, the Board, by the affirmative vote
of not less than three-quarters (3/4) of the entire membership of the
Board, has adopted a resolution finding that the Executive was guilty
of conduct set forth in this definition of Cause, and specifying the
particulars thereof in detail, at a meeting of the Board called and
held for the purpose of considering such termination (after reasonable
notice to the Executive and an opportunity for the Executive, together
with the Executive's counsel, to be heard before the Board) and (C) the
Company delivers a copy of such resolution to the Executive with the
Notice of Termination at the time the Executive's employment is
terminated.
In the event of a dispute regarding whether the Executive's employment has been
terminated for Cause, no claim by the Company that the Company has terminated
the Executive's employment for Cause in accordance with this Agreement shall be
given effect unless the Company establishes by clear and convincing evidence
that the Company has complied with the requirements of this Agreement to
terminate the Executive's employment for Cause.
(f) Change in Control. A "Change in Control" shall be
deemed to have occurred if the event set forth in any one of the following
paragraphs shall have occurred:
(i) any Person (other than (A) the Company or any
of its subsidiaries, (B) a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or any of its
subsidiaries, (C) an underwriter temporarily holding securities
pursuant to an offering of such securities or (D) a corporation owned,
directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock in the
Company ("Excluded Persons")) is or becomes the "Beneficial Owner" (as
such term is defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates after January 1, 1998
pursuant to express authorization by the Board that refers to this
exception) representing 25% or more of either the then outstanding
shares of common stock of the Company or the combined voting power of
the Company's then outstanding voting securities; or
(ii) the following individuals cease for any
reason to constitute a majority of the number of directors then
serving: individuals who, on January 1, 1998, constituted the Board and
any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the
election of directors of the Company, as such terms are used in Rule
14a-11 of Regulation 14A under the Act) whose appointment or election
by the Board or nomination for election by the Company's shareholders
was approved by a vote of at least two-thirds (2/3) of the directors
then still
A-3
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in office who either were directors on January 1, 1998 or whose
appointment, election or nomination for election was previously so
approved; or
(iii) the shareholders of the Company approve a
merger, consolidation or share exchange of the Company with any other
corporation or approve the issuance of voting securities of the Company
in connection with a merger, consolidation or share exchange of the
Company (or any direct or indirect subsidiary of the Company) pursuant
to applicable stock exchange requirements, other than (A) a merger,
consolidation or share exchange which would result in the voting
securities of the Company outstanding immediately prior to such merger,
consolidation or share exchange continuing to represent (either by
remaining outstanding or by being converted into voting securities of
the surviving entity or any parent thereof) at least 50% of the
combined voting power of the voting securities of the Company or such
surviving entity or any parent thereof outstanding immediately after
such merger, consolidation or share exchange, or (B) a merger,
consolidation or share exchange effected to implement a
recapitalization of the Company (or similar transaction) in which no
Person (other than an Excluded Person) is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person any
securities acquired directly from the Company or its Affiliates after
January 1, 1998 pursuant to express authorization by the Board that
refers to this exception) representing 25% or more of either the then
outstanding shares of common stock of the Company or the combined
voting power of the Company's then outstanding voting securities; or
(iv) the shareholders of the Company approve a
plan of complete liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets (in one transaction or a
series of related transactions within any period of 24 consecutive
months), other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity at least 75% of
the combined voting power of the voting securities of which are owned
by Persons in substantially the same proportions as their ownership of
the Company immediately prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be
deemed to have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity that owns all or substantially all of the assets or voting securities
of the Company immediately following such transaction or series of
transactions.
(g) Code. The term "Code" means the Internal Revenue Code
of 1986, including any amendments thereto or successor tax codes thereof.
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(h) Competitive Activity. The Executive shall engage in a
"Competitive Activity" if the Executive participates in the management of, is
employed by or owns any interest in any business enterprise at a location
within the United States that engages in substantial competition with the
Company or its subsidiaries, where such enterprise's revenues from any
competitive activities amount to 10% or more of such enterprise's consolidated
net revenues and sales for its most recently completed fiscal year; provided,
however, that owning stock or other securities of a competitor amounting to
less than five percent of the outstanding capital stock of such competitor
shall not be a "Competitive Activity".
(i) Covered Termination. The term "Covered Termination"
means any termination of the Executive's employment during the Employment
Period where the Termination Date or the date Notice of Termination is
delivered is any date on or prior to the end of the Employment Period.
(j) Effective Date. The term "Effective Date" shall mean
the first date on which a Change in Control occurs. Anything in this Agreement
to the contrary notwithstanding, if (i) a Change in Control occurs, (ii) the
Executive's employment with the Employer terminates (whether by the Company,
the Executive or otherwise) within 180 days prior to the Change in Control and
(iii) it is reasonably demonstrated by the Executive that (A) any such
termination of employment by the Employer (1) was at the request of a third
party who has taken steps reasonably calculated to effect a Change in Control
or (2) otherwise arose in connection with or in anticipation of a Change in
Control, or (B) any such termination of employment by the Executive took place
subsequent to the occurrence of an event described in clause (ii), (iii), (iv)
or (v) of the definition of "Good Reason" which event (1) occurred at the
request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (2) otherwise arose in connection with or in anticipation
of a Change in Control, then for all purposes of this Agreement the term
"Effective Date" shall mean the day immediately prior to the date of such
termination of employment.
(k) Employer. The term "Employer" means the Company
and/or any subsidiary of the Company that employed the Executive immediately
prior to the Effective Date.
(l) Good Reason. The Executive shall have a "Good Reason"
for termination of employment on or after the Effective Date if the Executive
determines in good faith that any of the following events has occurred:
(i) any breach of this Agreement by the Company,
including specifically any breach by the Company of its agreements
contained in Section 4, Section 5 or Section 6, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith that
the Company remedies promptly after receipt of notice thereof given by
the Executive;
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(ii) any reduction in the Executive's base salary,
percentage of base salary available as incentive compensation or bonus
opportunity or benefits, in each case relative to those most favorable
to the Executive in effect at any time during the 180-day period prior
to the Effective Date or, to the extent more favorable to the
Executive, those in effect after the Effective Date;
(iii) a material adverse change, without the
Executive's prior written consent, in the Executive's working
conditions or status with the Company or the Employer from such working
conditions or status in effect during the 180-day period prior to the
Effective Date or, to the extent more favorable to the Executive, those
in effect after the Effective Date, including but not limited to (A) a
material change in the nature or scope of the Executive's titles,
authority, powers, functions, duties, reporting requirements or
responsibilities, or (B) a material reduction in the level of support
services, staff, secretarial and other assistance, office space and
accoutrements, but excluding for this purpose an isolated,
insubstantial and inadvertent event not occurring in bad faith that the
Company remedies promptly after receipt of notice thereof given by the
Executive;
(iv) the relocation of the Executive's principal
place of employment to a location more than 35 miles from the
Executive's principal place of employment on the date 180 days prior to
the Effective Date;
(v) the Employer requires the Executive to travel
on Employer business to a materially greater extent than was required
during the 180-day period prior to the Effective Date;
(vi) failure by the Company to obtain the
agreement referred to in Section 16(a) as provided therein; or
(vii) the Company or the Employer terminates the
Executive's employment after a Change in Control without delivering a
Notice of Termination in accordance with Section 12;
provided that (A) any such event occurs following the Effective Date or (B) in
the case of any event described in clauses (ii), (iii), (iv) or (v) above, such
event occurs on or prior to the Effective Date under circumstances described in
clause (iii)(B)(1) or (iii)(B)(2) of the definition of "Effective Date." In
the event of a dispute regarding whether the Executive terminated the
Executive's employment for "Good Reason" in accordance with this Agreement, no
claim by the Company that such termination does not constitute a Covered
Termination shall be given effect unless the Company establishes by clear and
convincing evidence that such termination does not constitute a Covered
Termination. Any election by the Executive to terminate the Executive's
employment for Good Reason shall not be deemed a voluntary termination of
employment by the Executive for purposes of any other employee benefit or other
plan.
X-0
00
(x) Normal Retirement Date. The term "Normal Retirement
Date" means the date the Executive reaches age 65.
(n) Notice of Termination. The term "Notice of
Termination" means a written notice as contemplated by Section 12.
(o) Person. The term "Person" shall have the meaning
given in Section 3(a)(9) of the Act, as modified and used in Sections 13(d) and
14(d) thereof.
(p) Termination Date. Except as otherwise provided in
Section 9(b) and Section 16(a), the term "Termination Date" means (i) if the
Executive's employment is terminated by the Executive's death, the date of
death; (ii) if the Executive's employment is terminated by reason of voluntary
early retirement, as agreed in writing by the Company and the Executive, the
date of such early retirement that is set forth in such written agreement;
(iii) if the Executive's employment is terminated for purposes of this
Agreement by reason of disability pursuant to Section 11, thirty days after the
Notice of Termination is given; (iv) if the Executive's employment is
terminated by the Executive voluntarily (other than for Good Reason), the date
the Notice of Termination is given; and (v) if the Executive's employment is
terminated by the Company (other than by reason of disability pursuant to
Section 11) or by the Executive for Good Reason, thirty days after the Notice
of Termination is given. Notwithstanding the foregoing,
(A) If the Executive shall in good faith give a Notice of
Termination for Good Reason and the Company notifies the Executive that a
dispute exists concerning the termination within the fifteen-day period
following receipt thereof, then the Executive may elect to continue the
Executive's employment during such dispute and the Termination Date shall be
determined under this paragraph. If the Executive so elects and it is
thereafter determined that the Executive terminated the Executive's employment
for Good Reason in accordance with this Agreement, then the Termination Date
shall be the earlier of (1) the date on which the dispute is finally
determined, either (x) by mutual written agreement of the parties or (y) in
accordance with Section 21 or (2) the date of the Executive's death. If the
Executive so elects and it is thereafter determined that the Executive did not
terminate the Executive's employment for Good Reason in accordance with this
Agreement, then the employment of the Executive hereunder shall continue after
such determination as if the Executive had not delivered the Notice of
Termination asserting Good Reason and there shall be no Termination Date
arising out of such Notice. In either case, this Agreement continues, until
the Termination Date, if any, as if the Executive had not delivered the Notice
of Termination except that, if it is finally determined that the Executive
terminated the Executive's employment for Good Reason in accordance with this
Agreement, then the Executive shall in no case be denied the benefits described
in Section 8 (including a Termination Payment) based on events occurring after
the Executive delivered the Executive's Notice of Termination.
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(B) If an opinion is required to be delivered pursuant to
Section 8(a)(ii) and such opinion shall not have been delivered, then the
Termination Date shall be the date on which such opinion is delivered.
(C) Except as provided in paragraph (A) above, if the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination within the fifteen-day period
following receipt thereof and it is finally determined that termination of the
Executive's employment for the reason asserted in such Notice of Termination
was not in accordance with this Agreement, then (1) if such Notice was
delivered by the Executive, then the Executive will be deemed to have
voluntarily terminated the Executive's employment other than for Good Reason by
means of such Notice and (2) if delivered by the Company, then the Company will
be deemed to have terminated the Executive's employment other than by reason of
death, disability or Cause by means of such Notice.
A-8
