EXHIBIT (10)(c)
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AGREEMENT
This AGREEMENT is entered into this ___ day of
_____________, ____ by and between XXXXXXXX XXXXX, INC., a Delaware corporation
("Guilford" or the "Company"), and ________________ (the "Associate").
STATEMENT OF PURPOSE
The Board of Directors of Guilford has determined that it
is in the best interests of the Company and its stockholders for the Company to
pay the Associate termination compensation in the event the Associate should
leave the employ of the Company under the circumstances described in this
Agreement.
The Board of Directors recognizes that the possibility of a
proposal from a third person, whether solicited by the Company or unsolicited,
concerning a possible business combination with the Company, including the
acquisition of a substantial share of the equity or voting securities of the
Company, is unsettling to the Associate and other key personnel of the Company.
This Agreement is being executed and delivered to help assure a continuing
dedication by the Associate to his duties to the Company notwithstanding the
occurrence of a business combination proposal. In particular, the Board of
Directors believes it imperative, should the Company receive proposals from
third parties with respect to its future, to enable the Associate, without being
influenced by the uncertainties of his own situation, to assess and advise the
Board of Directors whether such proposals would be in the best interests of the
Company and its stockholders and to enable the Associate to take such other
action regarding such proposals as the Board of Directors might determine to be
appropriate.
NOW, THEREFORE, in view of the foregoing and in further
consideration of the Associate's continued dedicated employment with the Company
and the availability of the Associate's advice and counsel, and to reward the
Associate for his valuable and dedicated service to the Company, should his
service be terminated under any of the circumstances described below, and for
other good and valuable consideration, the receipt and sufficiency of which each
party acknowledges, the Company and the Associate hereby agree as follows:
1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties
as of the date hereof. Notwithstanding its present effectiveness, the provisions
of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a "Change in Control" of the Company. For purposes of this
Agreement, a "Change in Control" of the Company shall be deemed to have occurred
upon any of the following events:
(i) A change in control of the direction and administration
of the Company's business of a nature that is reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
NY2:\852541\05\$9TP05!.DOC\51040.0003 Executive Management
of 1934, as amended (the "Exchange Act"), as in effect on the date hereof and
any successor provision of the regulations under the Exchange Act, whether or
not the Company is then subject to such reporting requirement; or
(ii) Any "person" (as such term is used In Sections 13(d)
and 14(d)(2) of the Exchange Act but excluding any employee benefit plan of the
Company) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined voting power of the
Company's outstanding securities then entitled ordinarily to vote for the
election of Directors; or
(iii) During any period of two (2) consecutive years, the
individuals who at the beginning of such period constitute the Board of
Directors or any individuals who would be "Continuing Directors" (as hereinafter
defined) cease for any reason to constitute at least a Majority thereof; or
(iv) The Company shall cease to meet the listing criteria
of the New York Stock Exchange in respect of the number of shares of the
Company's Common Stock held by non-affiliates and the number of such
stockholders holding one hundred (100) shares or more; or
(v) The Board of Directors shall approve a sale of all or
substantially all of the assets of the Company; or
(vi) The Board of Directors shall approve any merger,
consolidation, or like business combination or reorganization of the Company,
the consummation of which would result in the occurrence of any event described
in clause (ii), (iii) or (iv), above;
provided, however, that none of the foregoing events shall constitute a Change
in Control if such event occurs as a result of an agreement or transaction
approved by the "Continuing Directors," either before or after the occurrence of
such event, and the Continuing Directors in approving such agreement or
transaction determine that it is not in the best interests of the Company for
such agreement or transaction to constitute a Change in Control for purposes of
this Agreement.
(b) For purposes of this Agreement, "Continuing Directors"
shall mean the directors of the Company in office on the date hereof and any
successor to any such director and any additional director who after the date
hereof (i) was nominated or selected by a majority of the Continuing Directors
in office at the time of his nomination or selection and (ii) who is not an
"affiliate" or "associate" (as defined in Regulation 12B under the Exchange Act)
of any person who is the beneficial owner, directly or indirectly, of securities
representing ten percent (10%) or more of the combined voting power of the
Company's outstanding securities then entitled ordinarily to vote for the
election of directors.
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(c) The Company shall be obligated to provide the payments and benefits referred
to in Sections 3 and 4 hereof following, and the provisions of Section 2 hereof
shall apply to, a Change in Control of the Company only if such Change in
Control shall have occurred, or as a result of efforts for such purposes known
to the parties hereto to have commenced, prior to May 31, 2005 (or such later
date as the Board shall determine).
2. EMPLOYMENT OF ASSOCIATE.
Except as provided in Section 2(b) below, nothing in this Agreement shall affect
any right which the Associate may otherwise have to terminate his employment
from the Company or a subsidiary of the Company (a "Subsidiary"), nor shall
anything in this Agreement affect any right which the Company or any Subsidiary
may have to terminate the Associate's employment at any time in any lawful
manner, subject to the provision that in the event of termination following a
Change in Control, the Company will provide to the Associate the payments and
benefits described in Sections 3 and 4 of this Agreement.
3. TERMINATION FOLLOWING CHANGE IN CONTROL.
(a) If a Change in Control of the Company shall have
occurred, the Associate shall be entitled to the benefits provided in Section 4
hereof upon the subsequent termination of his employment within the applicable
period set forth in Section 4 hereof following such Change in Control, unless
such termination is (i) due to the Associate's death or Retirement, (ii) by the
Company or a Subsidiary by reason of the Associate's Disability or for Cause or
(iii) by the Associate other than for Good Reason, as such terms are defined in
Section 3(d) hereof.
(b) If the Associate's employment is terminated by reason
of his death or Disability during the two (2) years following a Change in
Control, the Associate shall be entitled to death or long-term disability
benefits, as the case may be, from the Company no less favorable than the most
favorable benefits to which he would have been entitled had the death or
termination for Disability occurred at any time during the period commencing one
year prior to the initiation of actions that resulted in a Change in Control. If
prior to any such termination for Disability during the two (2) years following
a Change in Control, the Associate fails to perform his duties as a result of
incapacity due to physical or mental illness, he shall continue to receive his
Base Salary (as hereinafter defined) less any benefits as may be received by him
under the Company's or Subsidiary's disability plan until his employment is
terminated for Disability, and shall be entitled to the most favorable other
benefits applicable under the Company's policies during the period commencing
one year prior to the initiation of actions that resulted in the Change in
Control.
(c) If following a Change in Control, the Associate's
employment shall be terminated by the Company for Cause or by the Associate
other than for Good Reason during the two (2) years following a Change in
Control, the Company shall pay to the Associate his full Base Salary through the
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Date of Termination at the rate in effect on such Date of Termination and any
amounts to be paid to the Associate in accordance with the terms of any deferred
compensation or other Associate benefit plan or program, and the Company shall
have no further obligations to the Associate under this Agreement.
(d) For purposes of this Agreement:
(i) An Associate shall have a "Disability" if such
Associate is eligible to receive benefits under the applicable Group Long Term
Disability Income Plan for Associates or any successor plan thereto; provided,
however, that in the event that no such plan is in effect as of the applicable
date, "Disability" shall have the meaning ascribed to such term in any long term
disability benefit plan of the Company in effect as of the date of the Change in
Control.
(ii) "Retirement" shall mean that the Associate shall have
retired after reaching the normal or early retirement date provided in the
Company's Salaried Associate Retirement Profit Sharing Plan or any successor
plan thereto (the "Profit Sharing Plan") as in effect on the date of the Change
in Control.
(iii) "Cause" shall mean:
(A) The willful and continued failure by the Associate to
perform substantially his duties with the Company (other than any such failure
resulting from the Associate's incapacity due to physical or mental illness or
any such failure resulting from termination by the Associate for Good Reason)
after a written demand for substantial performance is delivered to the Associate
by the Board of Directors, which demand specifically identifies the manner in
which the Board of Directors believes that the Associate has not substantially
performed his duties; or
(B) The willful engagement in conduct by the Associate
which is demonstrably and materially injurious to the Company, monetarily or
otherwise; or
(C) Conviction for a felony or other crime punishable by
imprisonment for more than one (1) year, or the entering of a plea of nolo
contendere thereto.
For purposes of this subsection 3(d)(iii), no act, or failure to act, on the
Associate's part shall be considered "willful" unless done, or omitted to be
done, by him knowing and with the intent that such action or inaction would not
be in the best interests of the Company or otherwise was done or omitted to be
done in bad faith.
Notwithstanding any of the foregoing, the Associate shall not be deemed to have
been terminated for Cause pursuant to clause (A) or (B) above unless and until
there shall have been delivered to the Associate a resolution duly adopted by
the affirmative vote of the Board of Directors at a meeting called and held for
such purpose (after reasonable notice to the Associate and an opportunity for
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the Associate, together with his counsel, to be heard before the Board of
Directors), finding that in the good faith opinion of the Board of Directors the
Associate was guilty of conduct set forth above in clause (A) or (B) and
specifying the particulars thereof in detail.
(iv) "Good Reason" shall mean:
(A) The assignment by the Company or a Subsidiary to the
Associate of duties which (i) are inconsistent with, or require travel
significantly more time-consuming or extensive than, the Associate's duties and
business travel obligations immediately prior to the Change in Control, or (ii)
result, without the Associate's express written consent, in a significant
reduction in the Associate's authority and responsibility when compared to the
highest level of authority and responsibility assigned to the Associate at any
time during the six (6) month period prior to the Change in Control; or
(B) A reduction by the Company or a Subsidiary of the
Associate's Base Salary as the same may be increased from time to time
hereafter; or
(C) A change of the Associate's assigned site location as
of the date of the Change of Control ("Original Site") to another site location
which is at least 50 miles from the Original Site without the Associate's
consent, or in the event of any such relocation of the Associate with his
consent, the failure by the Company to pay (or reimburse the Associate for) all
reasonable moving expenses incurred by the Associate and relating to a change of
his principal residence, and to indemnify the Associate against any loss
realized by the Associate and/or the Associate's spouse in the sale of the
Associate's principal residence in connection with any such change of residence,
all to the effect that the Associate shall incur no loss on an after-tax basis;
or
(D) The failure by the Company to continue to provide the
Associate with substantially the same level of retirement and welfare benefits
(which for purposes of this Agreement shall mean benefits under all welfare
plans as that term is defined in Section 3(1) of the Employee Retirement Income
Security Act of 1974, as amended) and perquisites (including participation on a
comparable basis in the Company's Profit Sharing Plan, retirement plans, stock
option plans, incentive plans, life insurance plans (including pre- and
post-retirement plans), medical, health, accident, disability and other plans in
which associates of the Company of comparable title and salary grade
participate) as were provided to the Associate immediately prior to such Change
in Control, or with a package of retirement and welfare benefits and perquisites
that, though one or more such benefits or perquisites may vary from those
provided before such Change in Control, is substantially comparable in all
material respects when taken as a whole to such retirement and welfare benefits
and perquisites provided prior to the Change in Control; or
(E) The failure by the Company to provide continued
participation in an annual cash bonus plan pursuant to which, if applicable
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corporate and/or individual performance criteria are satisfied, the Associate
would receive an annual bonus in an amount equal to the product of (x) his or
her annual base salary and (y) a bonus percentage; provided, however, that such
performance criteria used in calculating the amount of an annual bonus shall be
selected and determined in a manner substantially consistent with the method of
establishing such targets immediately prior to the Change in Control and the
bonus percentage shall be no less than that percentage used in determining the
amount of the Associate's targeted bonus immediately prior to the Change in
Control, or
(F) The failure by the Company to perform its obligations
under any Company employee benefit agreements entered into between the Company
and the Associate; or
(G) The failure by the Company to obtain the express
written assumption of and agreement to perform this Agreement by any successor
as contemplated in Section 5(d) hereof; or
(H) Any purported termination of the Associate's employment
by the Company which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 3(e) hereof.
(v) "Base Salary" shall mean the annual base salary paid to
the Associate immediately prior to the Change in Control of the Company
(provided that such amount shall in no event be less than the annual base salary
paid to the Associate during the one (1) year period immediately prior to the
Change in Control).
(e) Any purported termination of employment by the Company
by reason of the Associate's Disability or for Cause, or by the Associate for
Good Reason, shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice given by the Associate or by the Company or a Subsidiary, as the
case may be, which shall indicate the specific basis for termination and shall
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for determination of any payments under this Agreement; provided, however,
that the Associate shall not be entitled to give a Notice of Termination that he
is terminating his employment with the Company or a Subsidiary for Good Reason
after the expiration of six (6) months following the last to occur of the events
alleged by him to constitute Good Reason.
(f) For purposes of this Agreement, "Date of Termination"
shall mean (i) if the Associate's employment is terminated for Disability,
thirty (30) days after the Notice of Termination is given (provided that the
Associate shall not have returned to the full-time performance of his duties
during such thirty (30) day period) and (ii) if the Associate's employment is
terminated for Cause or Good Reason, the date specified in the Notice of
Termination, which shall be not more than ninety (90) days after such Notice of
Termination is given. If within thirty (30) days after any Notice of Termination
is given, the party who receives such Notice of Termination notifies the other
party that a Dispute (as hereinafter defined) exists, the parties agree to
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pursue promptly the resolution of such Dispute with reasonable diligence.
Pending the resolution of any such Dispute, the Company or a Subsidiary shall
make the payments and provide the benefits provided for in Section 4, hereof to
the Associate. In the event that it is finally determined, either by mutual
written agreement of the parties or, by a binding arbitration award (which is
not appealable or the time for appeal therefrom having expired and no appeal
having been perfected), that a challenged termination by the Company or a
Subsidiary by reason of the Associate's Disability or for Cause was justified,
or that a challenged termination by the Associate for Good Reason was not
justified, then all sums paid by the Company or a Subsidiary to the Associate
from the Date of Termination specified in the Notice of Termination until final
resolution of the Dispute pursuant to this Section 3(f) shall be repaid promptly
by the Associate to the Company or a Subsidiary, with interest at the base rate
charged from time to time by Bank of America in Charlotte, North Carolina. In
the event that it is finally determined that a challenged termination by the
Company or a Subsidiary by reason of the Associate's Disability or for Cause was
not justified, or that a challenged termination by the Associate for Good Reason
was justified, then the Associate shall be entitled to retain all sums paid to
the Associate pending resolution of the Dispute.
(g) For purposes of this Agreement, "Dispute" shall mean
(i) in the case of the Associate's termination as an Associate with the Company
or a Subsidiary for Disability or Cause, that the Associate challenges the
existence of Disability or Cause and (ii) in the case of the Associate's
termination as an Associate with the Company or a Subsidiary by the Associate
for Good Reason, that the Company or a Subsidiary challenges the existence of
Good Reason.
4. PAYMENTS UPON TERMINATION.
If within two (2) years after a Change in Control of the
Company, the Company or a Subsidiary shall terminate the Associate's employment
other than by reason of the Associate's death, Disability, Retirement or for
Cause or if the Associate shall terminate his employment for Good Reason then,
subject, in each case to Section 4(g) hereof,
(a) The Company or a Subsidiary will pay to the Associate
as compensation for services rendered, not later than the fifth business day
following completion of the "Parachute Procedure" (as hereinafter defined), the
Associate's Base Salary through the Date of Termination and any bonus
theretofore granted to the Associate but not yet paid and a lump sum severance
payment (subject to any applicable payroll or other taxes and charges required
to be withheld computed at the rate for supplemental payments) equal to three
(3) times the sum of the following: (i) the Associate's Base Salary; (ii) the
amount of the Associate's last annual bonus prior to the Change in Control
(whether or not such bonus was paid in respect of the Company's last completed
fiscal year); (iii) the amount last contributed prior to the Change in Control
to the account of the Associate under the Profit Sharing Plan (or any successor
plan thereto) (whether or not such amount was paid in respect of the Company's
last completed fiscal year); (iv) the amount last contributed prior to the
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Change in Control to the account of the Associate under the Company's Employee
Stock Ownership Plan or any plan, including any 401(k) plan, instituted by the
Company in lieu of the Employee Stock Ownership Plan (whether or not such amount
was paid in respect of the Company's last completed fiscal year), the value of
any shares of Company Common Stock contributed thereunder being determined by
calculating the average of the closing price for such shares on the New York
Stock Exchange for the ten trading days preceding the Change in Control and (v)
the amount last contributed prior to the Change in Control to the account of the
Associate under the Company's excess benefit plan (whether or not such amount
was paid in respect of the Company's last completed fiscal year).
(b) During the period from the Change in Control to the
earlier of the remaining term of the option or the date one (1) year from the
Date of Termination, the Associate, his personal representative or heirs shall
have the right either (i) to exercise all outstanding Options previously granted
to the Associate by the Company, any successor to the Company or any acquiror of
the Company, including shares as to which such options would not otherwise then
be exercisable, or (ii) to require the Company, any successor to the Company or
any acquiror of the Company, upon written request, to purchase all such options
at a cash purchase price equal to the amount by which the aggregate "fair market
value" of the shares subject to such options exceeds the aggregate option price
for such shares. For purposes of this Agreement, the term "fair market value"
shall mean the highest consideration per share paid to the Company's
stockholders in connection with the transactions resulting in the Change in
Control; provided, however, that if no such consideration were paid in
connection with the Change in Control, the term "fair market value" shall mean
the last reported sale price on the date of the Change in Control (or, if there
is no reported sale on such date, the last preceding date on which any reported
sale occurred) of one share of the Company's common stock, par value $0.02 per
share (the "Common Stock"), on the principal exchange or the over-the-counter
securities market, including The New York Stock Exchange, on which such shares
are then listed for trading, as the case may be, or if the shares are no longer
listed for trading on any exchange or on The New York Stock, the fair market
value on such date of one share of Common Stock as the Company's Board of
Directors shall determine.
(c) Any participant in the Company's Senior Managers'
Supplemental Retirement Plan ("SERP") will become fully vested in such plan and
be credited with the number of years of service the participant would have as of
his or her normal retirement date under the SERP.
(d) Any awards previously made to the Associate under any
incentive compensation plans (including any equity-based plans) of the Company
or any Subsidiary which are vested in accordance with the applicable terms of
such plans and any related agreements but not previously paid shall be paid as
soon as reasonably practicable thereafter; and
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(e) The Associate's participation as of the Date of
Termination (and that of the Associate's dependents) in the life, health,
accident and disability and insurance plans of the Company shall be continued
(or equivalent benefits provided) until the earlier of (i) the Associate's
commencement of full-time substantially equivalent employment with a new
employer or (ii) thirty-six (36) months after the Date of Termination, unless
there are five (5) or fewer years remaining from the Date of Termination until
the Associate attains the age of 65, in which event the Associate's
participation in such plans shall be continued for the number of years
(including partial years) remaining until the Associate attains the age of 65
or, if earlier, the Associate's commencement of full-time substantially
equivalent employment with a new employer. In the event the Associate shall die
before the expiration of the period during which the Company is required to
continue the Associate's participation in such insurance plans pursuant to the
provisions thereof, the participation of the Associate's surviving spouse and
family in the Company's dependent life and health insurance plans shall continue
throughout such period; and
(f) The Company shall pay all reasonable expenses incurred
by the Associate in connection with the Associate obtaining full-time employment
with a new employer, including costs associated with retaining professional
counseling, employment search firms and such other reasonable services as the
Associate deems appropriate; and
(g) Loans from the Company to the Associate made prior to
the Change in Control shall not accelerate and become due prior to the original
maturity date, for any reason, notwithstanding any terms of such loan, at any
time during the one (1) period after the Date of Termination and may be extended
with written consent of the Company beyond such date; provided, however, that if
loans were made to facilitate the purchase of any property by the Associate and
the Associate shall dispose of such property, the Associate shall, within thirty
(30) days after such disposition make a mandatory prepayment of such loan equal
to the lesser of (i) the aggregate proceeds of such disposition received by the
Associate or (ii) the outstanding principal amount of, and accrued interest on,
such loan and; provided, further, that interest on any loan that is extended
pursuant to this Section 4(g) during the period of such extension shall be such
that no deemed interest or original issue discount shall arise under Section
7872 of the Internal Revenue Code of 1986, as the same may be amended (the
"Code"), as a result of such extension;
(h) (i) Notwithstanding anything to the contrary contained
herein, in the event that any portion of the aggregate payments and benefits
(the "Total Payments") received or to be received by the Associate, whether paid
or payable pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, a Subsidiary or any other person or
entity, would not be deductible in whole or in part by the Company, a Subsidiary
or by such other person or entity in the calculation of its federal income tax
by reason of Section 280G of the Code, the Total Payments payable shall be
reduced until no portion of the Total Payments would fail to be deductible by
reason of being an "excess parachute payment."
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(ii) No payments shall be made pursuant to this Section 4
until the procedure described in this Section 4(h)(ii) is completed (the
"Parachute Procedure"). The Company shall cause its independent auditors to
deliver to the Associate, within fifteen (15) days after the Date of
Termination, a statement which shall indicate whether payment to the Associate
of the Total Payments would cause any portion of the Total Payment not to be
deductible in whole or in part in the calculation of Federal income tax by
reason of Section 280G of the Code. Such statement shall set forth the value,
calculated in accordance with the principles of Section 280G of the Code and any
temporary or final regulations promulgated thereunder, of any non-cash benefits
or any deferred or contingent payment or benefit payable pursuant to the terms
of this Agreement or any other plan, arrangement or benefit, together with
sufficient information to enable the Associate to determine the payments that
may be made to the Associate without resulting in a loss of deduction under
Section 280G of the Code. The Company warrants to the Associate the accuracy of
all information and calculations supplied to the Associate in such statement. If
such statement indicates that payment of the Total Payments would result in a
loss of a deduction by reason of Section 280G of the Code, the Associate shall,
within thirty (30) days after receipt of the statement, deliver to the Company a
statement indicating which of the payments and benefits specified in such
auditor's statement the Associate elects to receive; provided, however, that the
payments and benefits selected by the Associate shall not result in a loss of
deduction under Section 280G of the Code. Delivery of the statement by the
Associate to the Company shall constitute completion of the Parachute Procedure;
and
(i) The Company shall contest any improper assessment of an
excise or other tax imposed as a result of determination that an "excess
parachute payment" has been made to the Associate within the meaning of Section
280G of the Code. If it is established pursuant to a final determination of a
court of competent jurisdiction or an Internal Revenue Service proceeding that
an "excess parachute payment" does in fact exist within the meaning of Section
280G of the Code, then the Associate shall pay to the Company, upon demand, an
amount not to exceed the sum of (i) the excess of the aggregate Total Payments
over the aggregate Total Payments that would have been paid without any portion
of such payment being deemed an "excess parachute payment" within the meaning of
Section 280G of the Code and (ii) interest on the amount set forth in clause (i)
above at the applicable federal rate specified in Section 1274(d) of the Code
from the date of receipt by the Associate of such excess until the date of such
repayment.
5. GENERAL.
(a) The Associate shall retain in confidence any
proprietary or other confidential information known to him concerning the
Company and its business (including any Subsidiary and its business) so long as
such information is not publicly disclosed and disclosure is not required by an
order of any governmental body or court. If requested, the Associate shall
return to the Company any memoranda, documents or other materials proprietary to
the Company.
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(b) If arbitration shall be brought to enforce or interpret
any provision contained herein, the Company shall indemnify the Associate for
his fees and disbursements incurred in connection therewith and pay prejudgment
interest on any money award obtained by the Associate calculated at the prime
rate of interest in effect from time to time at Bank of America, Charlotte,
North Carolina, from the date that payment should have been made under this
Agreement; provided, however, that the Associate shall not have been found by
the court to have had no cause in bringing the action, or to have acted in bad
faith, which finding must be final with the time to appeal therefrom having
expired and no appeal having been taken.
(c) Subject to the terms hereof, the Company's obligation
to pay the Associate the compensation and to make the arrangements provided
herein shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, any set off, counterclaim,
recoupment, defense or other right which the Company may have against the
Associate or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand. Except expressly provided herein, the Company
waives all rights it may now have or may hereafter have conferred upon it, by
statute or otherwise, to terminate, cancel or rescind this Agreement in whole or
in part. Each and every payment made hereunder by the Company shall be final and
the Company will not seek to recover for any reason all or any part of such
payment from the Associate or any person entitled thereto. The Associate shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment.
(d) The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by written
agreement to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement, the term
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement required by this Section 5(d), or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of law.
(e) This Agreement shall inure to the benefit of and be
enforceable by the Associate's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Associate should die while any amounts would still be payable to the Associate
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the Associate's devisee, legatee or other designor or, if there be no such
designee, to the Associate's estate.
(f) For the purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered by (i) United States registered
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mail, return receipt requested, postage prepaid, (ii) overnight courier service
or (iii) facsimile addressed as follows:
If to the Associate, to the address stated in the Company's
records for such Associate.
If to the Company:
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Law Department
Fax: (000) 000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(g) This Agreement shall constitute the entire agreement
between the Associate and the Company concerning the Associate's termination
subsequent to a Change in Control as provided herein, of Associate's employment,
and performance of its obligations hereunder by the Company shall constitute
full settlement and release of any claim or cause of action, of whatever nature,
which the Associate might otherwise assert or claim against the Company or any
of its directors, stockholders, officers or associates on account of such
termination, however, this Agreement is in addition to and not in lieu of any
other plan providing for payments to or benefits for the Associate or any
agreement now existing or which hereafter may be entered into between the
Company and the Associate. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing, signed by the Associate and an authorized officer of the Company. No
waiver by either party hereto at any time of any breach by the other xxxxx
hereto of compliance with any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of any similar or
dissimilar provision or condition at such same or at any prior or subsequent
time. No assurances or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Delaware without giving effect to the provisions, principles, or
policies thereof relating to choice or conflict of laws.
(h) The invalidity or unenforceability of any provision of
this Agreement in any circumstance shall not affect the validity or
enforceability of such provision in any other circumstance or the validity or
enforceability of any other provision of this Agreement and, except to the
extent such provision is invalid or unenforceable, this Agreement shall remain
in full force and effect. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
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only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof in such jurisdiction, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
(i) Except as otherwise explicitly provided herein, any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in accordance with the rules of the
American Arbitration Association then in effect. Unless otherwise agreed to by
the Company, any such arbitration shall take place in Guilford county, North
Carolina. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Associate shall be entitled to seek
specific performance of his right to be paid as provided in this Agreement in
the event of any Dispute.
(j) The masculine or neuter gender shall include the
feminine gender. This Agreement may be executed in more than one counterpart,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(k) Anything herein to the contrary notwithstanding, the
Associate shall not be entitled to any benefits or payments under this Agreement
if a Change in Control of the Company occurs after the Associate has ceased to
be a full-time Associate of the Company.
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IN WITNESS WHEREOF, the parties have executed this
Agreement on the day and year first above written.
XXXXXXXX XXXXX, INC. ASSOCIATE
By:
---------------------------------- -----------------------------
Name: Signature
Title:
-----------------------------
Type or Print Name
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