Exhibit 10(f)
SEVERANCE AGREEMENT
THIS AGREEMENT is entered into as of __________, 1996 by and
between Xxxxxxx-Xxxxxx Company, a Delaware corporation, and _______________ (the
"Executive").
WHEREAS, the Executive currently serves as a key employee of the
Company (as defined in Section 1) and his services and knowledge are valuable to
the Company in connection with the management of one or more of the Company's
principal operating facilities, divisions, departments or subsidiaries; and
WHEREAS, the Board (as defined in Section 1) has determined that
it is in the best interests of the Company and its stockholders to secure the
Executive's continued services and to ensure the Executive's continued
dedication and objectivity in the event of any threat or occurrence of, or
negotiation or other action that could lead to, or create the possibility of, a
Change in Control (as defined in Section 1) of the Company, without concern as
to whether the Executive might be hindered or distracted by personal
uncertainties and risks created by any such possible Change in Control, and to
encourage the Executive's full attention and dedication to the Company, the
Board has authorized the Company to enter into this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Company and the Executive
hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Cause means (1) a material breach by the Executive of those
duties and responsibilities of the Executive which do not differ in any material
respect from the duties and responsibilities of the Executive during the
six-month period immediately prior to a Change in Control (other than as a
result of incapacity due to physical or mental illness) which is demonstrably
willful and deliberate on the Executive's part, which is committed in bad faith
or without reasonable belief that such breach is in the best interests of the
Company and which is not remedied in a reasonable period of time after receipt
of written notice from the Company specifying such breach or (2) the commission
by the Executive of a felony involving moral turpitude.
(c) "Change in Control" means:
(1) The occurrence of any one or more of the following events:
(A) The acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of beneficial ownership within the meaning of Rule 13d-3 promulgated
under the Exchange Act of both (x) 20% or more of the combined voting power
of the then outstanding securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities") and (y) combined voting power of Outstanding Company Voting
Securities in excess of the combined voting power of the Outstanding
Company Voting Securities held by the Exempt Persons (as such term is
defined in Section 1(f)); provided, however, that a Change in Control shall
not result from an acquisition of Company Voting Securities:
(i) directly from the Company, except as otherwise provided
in Section 1(c)(2)(A);
(ii) by the Company, except as otherwise provided in Section
1(c)(2)(B);
(iii) by an Exempt Person;
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(iv) by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company; or
(v) by any corporation pursuant to a reorganization, merger or
consolidation involving the Company, if, immediately after such
reorganization, merger or consolidation, each of the conditions
described in clauses (i) and (ii) of Section 1(c)(1)(C) shall be
satisfied.
(B) The cessation for any reason of the members of the Incumbent
Board (as such term is defined in Section 1(h)) to constitute at least a
majority of the Board.
(C) Approval by the stockholders of the Company of a
reorganization, merger or consolidation unless, in any such case,
immediately after such reorganization, merger or consolidation:
(i) more than 60% of the combined voting power of the then
outstanding securities of the corporation resulting from such
reorganization, merger or consolidation entitled to vote generally
in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals or
entities who were the beneficial owners of the combined voting
power of all of the Outstanding Company Voting Securities
immediately prior to such reorganization, merger or consolidation;
and
(ii) at least a majority of the members of the board of
directors of the corporation resulting from such reorganization,
merger or consolidation were members of the Incumbent Board at the
time of the execution of the initial agreement or action of the
Board providing for such reorganization, merger or consolidation.
(D) Approval by the stockholders of the Company of the sale or
other disposition of all or substantially all of the assets of the Company
other than (x) pursuant to a tax-free spin-off of a subsidiary or other
business unit of the Company or (y) to a corporation with respect to which,
immediately after such sale or other disposition:
(i) more than 60% of the combined voting power of the then
outstanding securities thereof entitled to vote generally in the
election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners of the combined voting
power of all of the Outstanding Company Voting Securities
immediately prior to such sale or other disposition; and
(ii) at least a majority of the members of the board of
directors thereof were members of the Incumbent Board at the time
of the execution of the initial agreement or action of the Board
providing for such sale or other disposition.
(E) Approval by the stockholders of the Company of a plan of
complete liquidation or dissolution of the Company.
(2) Notwithstanding the provisions of Section 1(c)(1)(A):
(A) no acquisition of Company Voting Securities shall be
subject to the exception from the definition of Change in Control
contained in clause (i) of Section 1(c)(1)(A) if such acquisition
results from the exercise of an exercise, conversion or exchange
privilege unless the security being so exercised, converted or
exchanged was acquired directly from the Company; and
(B) for purposes of clause (ii) of Section 1(c)(1)(A), if any
Person (other than the Company, an Exempt Person or any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company) shall, by
reason of an acquisition of
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Company Voting Securities by the Company, become the beneficial
owner of (x) 20% or more of the combined voting power of the
Outstanding Company Voting Securities and (y) combined voting
power of Outstanding Company Voting Securities in excess of the
combined voting power of the Outstanding Company Voting Securities
held by the Exempt Persons, and such Person shall, after such
acquisition of Company Voting Securities by the Company, become
the beneficial owner of any additional Outstanding Company Voting
Securities and such beneficial ownership is publicly announced,
such additional beneficial ownership shall constitute a Change in
Control.
(d)"Company" means Xxxxxxx-Xxxxxx Company, a Delaware corporation.
(e "Date of Termination" means (1) the effective date on which
the Executive's employment by the Company terminates as specified in a prior
written notice by the Company or the Executive, as the case may be, to the
other, delivered pursuant to Section 11 or (2) if the Executive's employment by
the Company terminates by reason of death, the date of death of the Executive.
(f)"Exempt Person" (and collectively, the "Exempt Persons") means:
(1)Xxxxxxx X. Xxxxx or Xxxxxxx X. Xxxxx;
(2)any descendant of Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx or the
spouse of any such descendant;
(3)the estate of any of the persons described in Section 1(f)(1)
or (2);
(4)any trust or similar arrangement for the benefit of any person
described in Section 1(f)(1) or (2); or
(5)the Xxxxx Family Foundation or any other charitable
organization established by any person described in Section
1(f)(1) or (2).
(g) "Good Reason" means, without the Executive's express written
consent, the occurrence of any of the following events after a Change in
Control:
(1) any of (i) the assignment to the Executive of any duties
inconsistent in any material respect with the Executive's position(s), duties,
responsibilities or status with the Company immediately prior to such Change in
Control, (ii) a change in the Executive's reporting responsibilities, titles or
offices with the Company as in effect immediately prior to such Change in
Control or (iii) any removal or involuntary termination of the Executive from
the Company otherwise than as expressly permitted by this Agreement or any
failure to reelect the Executive to any position with the Company held by the
Executive immediately prior to such Change in Control;
(2) a reduction by the Company in the Executive's rate of annual
base salary as in effect immediately prior to such Change in Control or as the
same may be increased from time to time thereafter or the failure by the Company
to increase such rate of base salary each year after such Change in Control by
an amount which at least equals, on a percentage basis, the mean average
percentage increase in the rate of base salary for the Executive during the two
full fiscal years of the Company immediately preceding such Change in Control;
(3) any requirement of the Company that the Executive (i) be based
anywhere other than at the facility where the Executive is located at the time
of the Change in Control or (ii) travel on Company business to an extent
substantially more burdensome than the travel obligations of the Executive
immediately prior to such Change in Control;
(4) the failure of the Company to (i) continue in effect any
employee benefit plan or compensation plan in which the Executive is
participating immediately prior to such Change in Control, unless the Executive
is permitted to participate in other plans providing the Executive with
substantially comparable benefits, or the taking of any action by the Company
which would adversely affect the Executive's participation in or materially
reduce the Executive's benefits under any such plan, (ii) provide the Executive
and the Executive's dependents welfare benefits (including, without limitation,
medical, prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and programs)
in accordance with the most favorable
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plans, practices, programs and policies of the Company and its affiliated
companies in effect for the Executive immediately prior to such Change in
Control or, if more favorable to the Executive, as in effect generally at any
time thereafter with respect to other peer executives of the Company and its
affiliated companies, (iii) provide fringe benefits in accordance with the most
favorable plans, practices, programs and policies of the Company and its
affiliated companies in effect for the Executive immediately prior to such
Change in Control or, if more favorable to the Executive, as in effect generally
at any time thereafter with respect to other peer executives of the Company and
its affiliated companies, (iv) provide an office or offices of a size and with
furnishings and other appointments, together with exclusive personal secretarial
and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies
immediately prior to such Change in Control or, if more favorable to the
Executive, as provided generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies, (v) provide the
Executive with paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated companies as
in effect for the Executive immediately prior to such Change in Control or, if
more favorable to the Executive, as in effect generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies, or (vi) reimburse the Executive promptly for all reasonable
employment expenses incurred by the Executive in accordance with the most
favorable policies, practices and procedures of the Company and its affiliated
companies in effect for the Executive immediately prior to such Change in
Control or, if more favorable to the Executive, as in effect generally at any
time thereafter with respect to other peer executives of the Company and its
affiliated companies; or
(5) the failure of the Company to obtain the assumption agreement
from any successor as contemplated in Section 10(b).
For purposes of this Agreement, any good faith determination of
Good Reason made by the Executive shall be conclusive; provided, however, that
an isolated, insubstantial and inadvertent action taken in good faith and which
is remedied by the Company promptly after receipt of notice thereof given by the
Executive shall not constitute Good Reason.
(h) "Incumbent Board" means those individuals who, as of October
24, 1996, constitute the Board, provided that:
(1) any individual who becomes a director of the Company
subsequent to such date whose election, or nomination for election by the
Company's stockholders, was approved either by the vote of at least a majority
of the directors then comprising the Incumbent Board or by the vote of at least
a majority of the combined voting power of the Outstanding Company Voting
Securities held by the Exempt Persons shall be deemed to have been a member of
the Incumbent Board; and
(2) no individual who was initially elected as a director of the
Company as a result of an actual or threatened election contest, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act, or
any other actual or threatened solicitation of proxies or consents by or on
behalf of any Person other than the Board or the Exempt Persons shall be deemed
to have been a member of the Incumbent Board.
(i) "Nonqualifying Termination" means a termination of the
Executive's employment (1) by the Company for Cause, (2) by the Executive for
any reason other than a Good Reason, (3) as a result of the Executive's death or
(4) by the Company due to the Executive's absence from his duties with the
Company on a full-time basis for at least 180 consecutive days as a result of
the Executive's incapacity due to physical or mental illness.
(j) "Termination Period" means the period of time beginning with a
Change in Control and ending on the earlier to occur of (1) two years following
such Change in Control or (2) the Executive's death.
2. Obligations of the Executive. The Executive agrees that in the
event of a Change in Control, he shall not voluntarily leave the employ of the
Company without Good Reason until 90 days following such Change in Control. The
Executive further agrees that in the event that any person or group attempts a
Change in Control, he shall not voluntarily leave the employ of the Company
during such attempted Change in Control unless an event occurs which would have
constituted Good Reason had it occurred following a Change in Control (for
purposes of determining whether such an event would have constituted Good Reason
had it occurred following a Change in Control, the definition of Good Reason
shall be interpreted as if a Change in Control had occurred when such attempted
Change in Control became known to the Board). The Executive acknowledges that if
he leaves the employ of the Company for any reason prior to a Change in Control,
he shall not be entitled to any payment or benefit pursuant to this Agreement.
3. Payments Upon Termination of Employment.
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(a) If during the Termination Period the employment of the
Executive shall terminate, other than by reason of a Nonqualifying Termination,
then the Company shall pay to the Executive (or the Executive's beneficiary or
estate) within 30 days following the Date of Termination, as compensation for
services rendered to the Company:
(1) a cash amount equal to the sum of (i) the Executive's base
salary from the Company and its affiliated companies through the Date of
Termination, to the extent not theretofore paid, (ii) the Executive's annual
bonus in an amount determined in accordance with the terms of the Company's
Management Incentive Plan, (iii) the amount payable to the Executive in
accordance with the terms of the Company's 1994 Shareholder Value Incentive Plan
and (iv) any compensation previously deferred for the benefit of the Executive
(together with any interest and earnings thereon) and any accrued vacation pay,
in each case to the extent not theretofore paid; plus
(2) a lump-sum cash amount (subject to any applicable payroll or
other taxes required to be withheld pursuant to Section 5) equal to (i) 2.99
times the Executive's highest annual base salary from the Company and its
affiliated companies in effect during the 12-month period prior to the Date of
Termination, plus (ii) 2.99 times the Executive's highest annualized (for any
fiscal year consisting of less than 12 full months or with respect to which the
Executive has been employed by the Company for less than 12 full months) bonus,
paid or payable, including by reason of any deferral, to the Executive by the
Company and its affiliated companies in respect of the five fiscal years of the
Company (or such portion thereof during which the Executive performed services
for the Company if the Executive shall have been employed by the Company for
less than such five fiscal year period) immediately preceding the fiscal year in
which the Change in Control occurs; provided, that any amount paid pursuant to
this Section 3(a)(2) shall be paid in lieu of any other amount of severance
relating to salary or bonus continuation to be received by the Executive upon
termination of employment of the Executive under any severance plan, policy or
arrangement of the Company.
(b) In addition to the payments to be made pursuant to Section
3(a) hereof, any stock options granted to the Executive under the Company's
Employee Stock Option Plan of 1988 shall be treated in accordance with the terms
of such plan.
(c) For a period of 36 months commencing on the Date of
Termination, the Company shall continue to keep in full force and effect all
policies of medical, accident, disability and life insurance with respect to the
Executive and his dependents with the same level of coverage, upon the same
terms and otherwise to the same extent as such policies shall have been in
effect immediately prior to the Date of Termination or, if more favorable to the
Executive, as provided generally with respect to other peer executives of the
Company and its affiliated companies, and the Company and the Executive shall
share the costs of the continuation of such insurance coverage in the same
proportion as such costs were shared immediately prior to the Date of
Termination.
(d) If during the Termination Period the employment of the
Executive shall terminate by reason of a Nonqualifying Termination, then the
Company shall pay to the Executive within 30 days following the Date of
Termination, a cash amount equal to the sum of (1) the Executive's full annual
base salary from the Company through the Date of Termination, to the extent not
theretofore paid and (2) any compensation previously deferred by the Executive
(together with any interest and earnings thereon) and any accrued vacation pay,
in each case to the extent not theretofore paid.
4. Limitations on Payments by the Company. Solely for the purposes of
the computation of benefits under this Agreement and notwithstanding any other
provisions hereof, payments to the Executive under this Agreement shall be
reduced (but not below zero) so that the present value, as determined in
accordance with Section 280G(d)(4) of the Internal Revenue Code of 1986, as
amended (the "Code"), of such payments plus any other payments that must be
taken into account for purposes of any computation relating to the Executive
under Section 280G(b)(2)(A)(ii) of the Code, shall not, in the aggregate, exceed
2.99 times the Executive's "base amount," as such term is defined in Section
280G(b)(3) of the Code. Notwithstanding any other provision hereof, no reduction
in payments under the limitation contained in the immediately preceding sentence
shall be applied to payments hereunder which do not constitute "excess parachute
payments" within the meaning of the Code. Any payments in excess of the
limitation of this Section 4 or otherwise determined to be "excess parachute
payments" made to the Executive hereunder shall be deemed to be overpayments
which shall constitute an amount owing from the Executive to the Company with
interest from the date of receipt by the Executive to the date of repayment (or
offset) at the applicable federal rate under Section 1274(d) of the Code,
compounded semi-annually, which shall be payable to the Company upon demand;
provided, however, that no repayment shall be required under this sentence if in
the written opinion of tax counsel satisfactory to the Executive and delivered
to the Executive and the Company such repayment does not allow such overpayment
to be excluded for federal income and excise tax purposes from the Executive's
income for the year of receipt or afford the Executive a compensating federal
income tax deduction for the year of repayment.
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5. Withholding Taxes. The Company may withhold from all payments
due to the Executive (or his beneficiary or estate) hereunder all taxes which,
by applicable federal, state, local or other law, the Company is required to
withhold therefrom.
6. Reimbursement of Expenses. If any contest or dispute shall
arise under this Agreement involving termination of the Executive's employment
with the Company or involving the failure or refusal of the Company to perform
fully in accordance with the terms hereof, the Company shall reimburse the
Executive, on a current basis, for all legal fees and expenses, if any, incurred
by the Executive in connection with such contest or dispute, together with
interest in an amount equal to the prime rate from time to time in effect, as
published under "Money Rates" in The Wall Street Journal, but in no event higher
than the maximum legal rate permissible under applicable law, such interest to
accrue from the date the Company receives the Executive's statement for such
fees and expenses through the date of payment thereof; provided, however, that
in the event the resolution of any such contest or dispute includes a finding
denying, in total, the Executive's claims in such contest or dispute, the
Executive shall be required to reimburse the Company, over a period of 12 months
from the date of such resolution, for all sums advanced to the Executive
pursuant to this Section 6.
7. Operative Event. Notwithstanding any provision herein to the
contrary, no amounts shall be payable hereunder unless and until there is a
Change in Control at a time when the Executive is employed by the Company.
8. Termination of Agreement. (a) This Agreement shall be effective
on the date hereof and shall continue until terminated by the Company as
provided in Section 8(b); provided, however, that this Agreement shall terminate
in any event upon the first to occur of (i) termination of the Executive's
employment with the Company prior to a Change in Control or (ii) the Executive's
death.
(b) The Company shall have the right prior to a Change in Control,
in its sole discretion, pursuant to action by the Board, to approve the
termination of this Agreement, which termination shall not become effective
until the date fixed by the Board for such termination, which date shall be at
least 120 days after notice thereof is given by the Company to the Executive in
accordance with Section 11; provided, however, that no such action shall be
taken by the Board during any period of time when the Board has knowledge that
any person has taken steps reasonably calculated to effect a Change in Control
until, in the opinion of the Board, such person has abandoned or terminated its
efforts to effect a Change in Control; and provided further, that in no event
shall this Agreement be terminated in the event of a Change in Control.
9. Scope of Agreement. Nothing in this Agreement shall be deemed
to entitle the Executive to continued employment with the Company or its
subsidiaries, and if the Executive's employment with the Company shall terminate
prior to a Change in Control, then the Executive shall have no further rights
under this Agreement; provided, however, that any termination of the Executive's
employment following a Change in Control shall be subject to all of the
provisions of this Agreement.
10. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any merger or
consolidation of the Company whereby the Company is or is not the surviving or
resulting corporation or as a result of any transfer of all or substantially all
of the assets of the Company. In the event of any such merger, consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon the
surviving or resulting corporation or the person or entity to which such assets
are transferred.
(b) The Company agrees that concurrently with any merger,
consolidation or transfer of assets referred to in Section 10(a), it will cause
any successor or transferee unconditionally to assume, by written instrument
delivered to the Executive (or his beneficiary or estate), all of the
obligations of the Company hereunder. Failure of the Company to obtain such
assumption prior to the effectiveness of any such merger, consolidation or
transfer of assets shall be a breach of this Agreement and shall entitle the
Executive to compensation and other benefits from the Company in the same amount
and on the same terms as the Executive would be entitled hereunder if the
Executive's employment were terminated following a Change in Control other than
by reason of a Nonqualifying Termination. For purposes of implementing the
foregoing payment of compensation and benefits to the Executive, the date on
which any such merger, consolidation or transfer becomes effective shall be
deemed the Date of Termination.
(c) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amounts would be payable to the Executive
hereunder had the Executive continued to live, all such amounts, unless
otherwise provided
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herein, shall be paid in accordance with the terms of this Agreement to such
person or persons appointed in writing by the Executive to receive such amounts
or, if no person is so appointed, to the Executive's estate.
11. Notice. (a) For purposes of this Agreement, all notices and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given when delivered or five days after
deposit in the United States mail, certified and return receipt requested,
postage prepaid, addressed (1) if to the Executive, to his most recent address
as it appears in the records of the Company, and if to the Company, to
Xxxxxxx-Xxxxxx Company, 0000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000,
attention of the President, with a copy to the General Counsel or (2) to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(b) A written notice of the Executive's Date of Termination by the
Company or the Executive, as the case may be, to the other, shall (i) indicate
the specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated and (iii) specify the termination date (which date
shall be not less than 15 days after the giving of such notice). The failure by
the Executive or the Company to set forth in such notice any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
12. Full Settlement; Resolution of Disputes. (a) The Company's
obligation to make any payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Company may have against the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and, such amounts shall not be reduced whether or
not the Executive obtains other employment.
(b) If there shall be any dispute between the Company and the
Executive in the event of any termination of the Executive's employment, then,
unless and until there is a final, nonappealable judgment by a court of
competent jurisdiction declaring that such termination was for Cause, that the
determination by the Executive of the existence of Good Reason was not made in
good faith, or that the Company is not otherwise obligated to pay any amount or
provide any benefit to the Executive and his dependents or other beneficiaries,
as the case may be, under Sections 3(a) and 3(b), the Company shall pay all
amounts, and provide all benefits, to the Executive and his dependents or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to Sections 3(a) and 3(b) as though such termination were by
the Company without Cause or by the Executive with Good Reason; provided,
however, that the Company shall not be required to pay any disputed amounts
pursuant to this Section 12(b) except upon receipt of an undertaking by or on
behalf of the Executive to repay all such amounts to which the Executive is
ultimately adjudged by such court not to be entitled.
13. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any corporation or
other entity in which the Company has a direct or indirect ownership interest of
50% or more of the total combined voting power of the then outstanding
securities of such corporation or other entity entitled to vote generally in the
election of directors.
14. Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois without regard to the
principle of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which other provisions shall remain in
full force and effect.
15. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
16. Miscellaneous. No provision of this Agreement may be modified
or waived unless such modification or waiver is agreed to in writing and signed
by the Executive and by a duly authorized officer of the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Failure by the
Executive or the Company to insist upon strict compliance with any provision of
this Agreement
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or 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. The rights of, and
benefits payable to, the Executive, his estate or his beneficiaries pursuant to
this Agreement are in addition to any rights of, or benefits payable to, the
Executive, his estate or his beneficiaries under any other employee benefit plan
or compensation program of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer of the Company and the Executive has
executed this Agreement as of the day and year first above written.
XXXXXXX-XXXXXX COMPANY
By:___________________________
EXECUTIVE:
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Subscribed and Sworn to before me this ___ day of __________, 1996.
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Notary Public
243526.04
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