Exhibit 10.15
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "Agreement"), dated as of April 22,
1998, is made and entered into by and between Affiliated Research Centers, Inc.,
a Delaware corporation (the "Company"), and Xx. Xxxx Xxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive is a senior executive of the Company and is
expected to continue to make major contributions to the short- and long-term
profitability, growth and financial strength of the Company;
WHEREAS, the Company recognizes that, as is the case for most
companies, the possibility of a Change in Control (as defined below) exists;
WHEREAS, the Company desires to ensure both present and future
continuity of management and desires to establish certain minimum severance
benefits for certain of its senior executives, including the Executive,
applicable in the event of a Change in Control;
WHEREAS, the Company desires to ensure that its senior executives are
not practically disabled from discharging their duties in respect of a proposed
or actual transaction involving a Change in Control; and
WHEREAS, the Company desires to provide additional inducement for the
Executive to continue to remain in the ongoing employ of the Company.
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Certain Defined Terms. In addition to terms defined elsewhere
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herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "Base Pay" means the Executive's annual base salary at a rate not
less than the Executive's annual fixed or base compensation as in effect for
Executive immediately prior to the occurrence of a Change in Control or such
higher rate as may be determined from time to time after a Change in Control by
the Board or a committee thereof, which salary includes any salary reduction
contributions to (i) any Company-sponsored plan that includes a cash-or-deferred
arrangement under Section 401(k) of the Internal Revenue Code of 1986, as
amended (the "Code"), (ii) any other Company-sponsored plan of deferred
compensation or (iii) any Company-sponsored "cafeteria plan" under Section 125
of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" means prior to any termination pursuant to Section 3(b):
(i) intentional engagement by the Executive in misconduct
which is materially injurious to the Company or any Subsidiary;
(ii) intentional act by the Executive of fraud,
embezzlement or theft in connection with her duties or in the course of her
employment with the Company or any Subsidiary;
(iii) intentional damage by the Executive to property of
the Company or any Subsidiary;
(iv) intentional engagement by the Executive in any
Competitive Activity; or
(v) intentional wrongful disclosure by the Executive of
secret processes or confidential information of the Company or any
Subsidiary;
if any such act or failure to act is demonstrably and materially harmful to
the Company. For purposes of this Agreement, no act or failure to act on
the Executive's part shall be deemed "intentional" if it was due primarily
to an error in judgment or negligence, but it shall be deemed "intentional"
only if it was not in good faith and without reasonable belief that her act
or failure to act was in the Company's best interest. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated for
"Cause" hereunder unless and until the Executive receives a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds
of the Board then in office (excluding the Executive if she is a Director)
at a meeting of the Board called and held for such purpose, after
reasonable notice to the Executive and an opportunity for the Executive,
together with her counsel (if the Executive chooses to have counsel present
at such meeting), to be heard before the Board, finding that, in the good
faith opinion of the Board, the Executive was guilty of conduct
constituting "Cause" as herein defined and specifying the particulars
thereof. Nothing herein will limit the right of the Executive or her
beneficiaries to contest the validity or propriety of any such
determination.
(d) "Change in Control" means the occurrence during the Term of
any of the following events:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 15% or more of the combined voting
power of the then outstanding Voting Stock; provided, however, that for
purposes of this Section 1(d)(i), the following acquisitions shall not
constitute a Change in Control: (A) any acquisition directly from the
Company that is approved by the Incumbent Board (as defined below), (B) any
acquisition by the Company, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
Subsidiary or (D) any acquisition by any Person pursuant to a Business
Combination (as defined below) that complies with clauses (I), (II) and
(III) of subsection (iii) of this Section 1(d);
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(ii) individuals who, as of the date hereof, constitute
the Board, excluding individuals who are elected by the holders of the
Company's Series A Preferred Stock, par value $0.001 per share (the "Series
A Preferred Stock"), or who are appointed by the Board on the date hereof
or hereafter to fill a vacancy in the office of a Director elected by the
holders of the Series A Preferred Stock pursuant to such holders'
entitlement to elect such Director (the "Preferred Board Members"), (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board except that (A) any individual becoming a Director subsequent
to the date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least two-thirds of
the Directors then comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without objection to such
nomination) shall be deemed to have been a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest (within the meaning of Rule 14a-11 of the Exchange Act) with
respect to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board and (B) Preferred Board Members shall be excluded for
this purpose;
(iii) consummation of (A) a reorganization, merger or
consolidation or (B) a sale or other disposition of all or substantially
all of the assets of the Company (each, a "Business Combination"), unless,
in each case, immediately following such Business Combination, (I) all or
substantially all of the individuals and entities who were the beneficial
owners of Voting Stock of the Company immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the
then outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of Directors of the entity resulting from such Business
Combination (including, without limitation, an entity which as a result of
such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries) in
substantially the same proportions relative to each other as their
ownership, immediately prior to such Business Combination, of the Voting
Stock of the Company, (II) no Person (other than the Company, such entity
resulting from such Business Combination or any employee benefit plan (or
related trust) sponsored or maintained by the Company, any Subsidiary or
such entity resulting from such Business Combination) beneficially owns,
directly or indirectly, 15% or more of the then outstanding shares of
common stock of the entity resulting from such Business Combination or the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors of such entity and (III) at
least a majority of the members of the Board of Directors of the entity
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement or of the
action of the Board providing for such Business Combination; or
(iv) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (I), (II) and (III) of
subsection (iii) of this Section 1(d).
(e) "Competitive Activity" means the Executive's participation,
without the written consent of the Board of the Company, as an employee,
officer, consultant or director
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of any business enterprise if such enterprise engages in substantial and direct
competition with the Company and such enterprise's sales of any product or
service competitive with any product or service of the Company amounted to 50%
of such enterprise's net sales for its most recently completely fiscal year and
if the Company's net sales of said product or service amounted to 50% of the
Company's net sales for its most recently completed fiscal year. "Competitive
Activity" will not include (i) the mere ownership of securities in any such
enterprise and the exercise of rights appurtenant thereto; (ii) participation in
the management of any such enterprise other than in connection with the
competitive operations of such enterprise or (iii) participation in the business
conducted by Northwestern Kinetics as of the date hereof.
(f) "Employee Benefits" means the perquisites, benefits and service
credit for benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs or arrangements in which Executive is
entitled to participate, including without limitation any stock option, stock
purchase, stock appreciation, savings, pension, supplemental executive
retirement, or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group or other life, health,
medical/hospital or other insurance (whether funded by actual insurance or self-
insured by the Company), disability, salary continuation, expense reimbursement
and other employee benefit policies, plans, programs or arrangements that may
now exist or any equivalent successor policies, plans, programs or arrangements
that may be adopted hereafter by the Company, providing perquisites, benefits
and service credit for benefits at least as great in the aggregate as are
payable thereunder prior to a Change in Control.
(g) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
(h) "Incentive Pay" means an annual amount equal to not less than the
highest aggregate annual bonus, incentive or other payments of cash
compensation, in addition to Base Pay, made or to be made in regard to services
rendered in any calendar year during the three calendar years immediately
preceding the year in which a Change in Control occurs pursuant to any bonus,
incentive, profit-sharing, performance, discretionary pay or similar agreement,
policy, plan, program or arrangement (whether or not funded) of the Company, or
any successor thereto providing benefits at least as great as the benefits
payable thereunder prior to a Change in Control.
(i) "Severance Period" means the period commencing on the date of the
first occurrence of a Change in Control and expiring on the earliest of (i) the
second anniversary of the occurrence of the Change in Control, (ii) the
Executive's death or (iii) the Executive's attainment of age 65 except that
commencing on each anniversary of the Change in Control, the Severance Period
shall automatically be extended for an additional year unless, not later than 60
calendar days prior to such anniversary date, either the Company or the
Executive shall have given written notice to the other that the Severance Period
is not to be so extended.
(j) "Subsidiary" means an entity in which the Company directly or
indirectly beneficially owns 50% or more of the outstanding Voting Stock.
(k) "Term" means the period commencing on the date hereof and
expiring on the later of (i) one year from the date hereof or (ii) the
expiration of the Severance Period except that (A) commencing on each
anniversary of the date hereof, such period shall automatically be extended for
an additional year until such date as the Company or the Executive gives the
other written notice
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not later than 60 calendar days prior to such anniversary date that it or she,
as the case may be, does not wish to have the Term extended and (B) subject to
the last sentence of Section 9, if, prior to a Change in Control, the Executive
ceases for any reason to be an employee of the Company, thereupon without
further action the Term shall expire and this Agreement will immediately
terminate and be of no further effect.
(l) "Termination Date" means the date on which the Executive's
employment is terminated (the effective date of which shall be the date of
termination, or such other date that may be specified by the Executive if the
termination is pursuant to Section 3(b)).
(m) "Voting Stock" means securities entitled to vote generally in the
election of directors.
2. Operation of Agreement. This Agreement will be effective and
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binding immediately upon its execution, but, anything in this Agreement to the
contrary notwithstanding, this Agreement shall not be operative unless and until
a Change in Control occurs. Upon the occurrence of a Change in Control at any
time during the Term, without further action, this Agreement shall become
immediately operative.
3. Termination Following a Change in Control.
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(a) If at any time during the Severance Period following the
occurrence of a Change in Control the Company terminates Executive's employment,
the Executive shall be entitled to the benefits provided by Section 4 unless
such termination is the result of the occurrence of one or more of the following
events:
(i) The Executive's death;
(ii) The Executive's permanent disability within the
meaning of, and actual receipt of disability benefits pursuant to, the
long-term disability plan in effect for, or applicable to, Executive
immediately prior to the Change in Control; or
(iii) Cause.
(b) If at any time during the Severance Period following the
occurrence of a Change in Control the Executive terminates her employment with
the Company, the Executive shall be entitled to the benefits provided by Section
4 if one or more of the following events has occurred (regardless of whether any
other reason, other than Cause as hereinabove provided, for such termination
exists or has occurred, including without limitation other employment):
(i) Failure to elect or reelect or otherwise to maintain
the Executive in the office or the position, or a substantially equivalent
office or position, of or with the Company, which the Executive held
immediately prior to a Change in Control, or if the Executive was a
Director of the Company immediately prior to the Change in Control, the
removal of the Executive as a Director of the Company (or any successor
thereto);
(ii) (A) a reduction in the aggregate of the Executive's
Base Pay and Incentive Pay received from the Company and any Subsidiary
from that earned
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immediately prior to the Change in Control or (B) the termination or denial
of the Executive's rights to Employee Benefits or a reduction in the scope
or value thereof from that earned immediately prior to the Change in
Control, any of which is not remedied by the Company no later than 10
calendar days after receipt by the Company of written notice from the
Executive of such change, reduction or termination, as the case may be;
(iii) A determination by the Executive (which determination
will be conclusive and binding upon the parties hereto if it was made in
good faith and in all events will be presumed to have been made in good
faith unless otherwise shown by the Company by clear and convincing
evidence) that a change in circumstances has occurred following a Change in
Control, including, without limitation, a change in the scope of the
business or other activities for which the Executive was responsible
immediately prior to the Change in Control, which has rendered the
Executive substantially unable to carry out, has substantially hindered
Executive's performance of, or has caused Executive to suffer a substantial
reduction in, any of the authorities, powers, functions, responsibilities
or duties attached to the position held by the Executive immediately prior
to the Change in Control, which situation is not remedied no later than 10
calendar days after receipt by the Company of written notice from the
Executive of such determination;
(iv) The liquidation, dissolution, merger, consolidation or
reorganization of the Company or transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or otherwise)
to which all or substantially all of its business and/or assets have been
transferred (directly or by operation of law) assumed all duties and
obligations of the Company under this Agreement pursuant to Section 11(a);
(v) The Company requires the Executive to have her principal
location of work changed to any location that is in excess of 50 miles from
the location thereof immediately prior to the Change in Control, or
requires the Executive to travel away from her office in the course of
discharging her responsibilities or duties hereunder at least 20% more (in
terms of aggregate days in each calendar year or in any calendar quarter
(with respect to partial years) when annualized for purposes of comparison
to any prior year) than was required of Executive in any of the three full
years (or such shorter period as this Agreement has been in effect)
immediately prior to the Change in Control without, in either case, her
prior written consent; or
(vi) Without limiting the generality or effect of the
foregoing, any material breach of this Agreement by the Company or any
successor thereto which is not remedied by the Company within 10 calendar
days after receipt by the Company of written notice from the Executive of
such breach.
(c) A termination by the Company pursuant to Section 3(a) or by the
Executive pursuant to Section 3(b) will not affect any rights that the Executive
may have pursuant to any agreement, policy, plan, program or arrangement of the
Company providing Employee Benefits, which rights shall be governed by the terms
thereof, except for any rights to severance compensation to which Executive may
be entitled upon termination of employment under the Employment Agreement dated
as of even date herewith between the Company and the Executive, which rights
shall, during the Severance Period, be superseded by this Agreement.
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4. Severance Compensation.
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(a) If at any time during the Severance Period following the
occurrence of a Change in Control the Company terminates the Executive's
employment other than pursuant to Section 3(a) or the Executive terminates her
employment pursuant to Section 3(b),
(i) the Company shall, no later than five business days
after the Termination Date, pay to the Executive a lump sum payment in an
amount equal to one times the sum of (A) Base Pay (at the highest rate in
effect for any period prior to the Termination Date), plus (B) Incentive
Pay (determined in accordance with the standards set forth in Section
1(h));
(ii) the Company shall, for a period of twelve months
following the Termination Date (the "Continuation Period"), arrange to
provide the Executive with Employee Benefits that are welfare benefits (but
not stock option, stock purchase, stock appreciation or similar
compensatory benefits) substantially similar to those that the Executive
was receiving or entitled to receive immediately prior to the Termination
Date (or, if greater, immediately prior to the reduction, termination or
denial described in Section 3(b)(ii)), except that the level of any such
Employee Benefits to be provided to the Executive may be reduced in the
event of a corresponding reduction generally applicable to all recipients
of or participants in such Employee Benefits, which Continuation Period
will be considered service with the Company for the purpose of determining
service credits and benefits due and payable to the Executive under the
Company's retirement income, supplemental executive retirement and other
benefit plans of the Company applicable to the Executive, her dependents or
her beneficiaries immediately prior to the Termination Date;
(iii) the Company shall provide the Executive with
outplacement services by a firm selected by the Executive, at the expense
of the Company in an amount up to 20% of the Executive's Base Pay; and
(iv) notwithstanding anything to the contrary in the
Executive's stock option agreement(s) or certificate(s) or in the stock
option plan(s) under which Executive's stock options were granted, (A) (i)
all of Executive's stock options that are outstanding as of the date hereof
and are not then exercisable shall become immediately exercisable and shall
terminate on the date one year from the Termination Date, and not earlier,
and (2) all stock options that may be granted to Executive after the date
hereof and are not then exercisable shall terminate on the Termination Date
and (B) Executive may exercise all or any of her options that are
exercisable from time to time until the date one year from the Termination
Date.
If and to the extent that any benefit described in Section 4(a)(ii) or (iii) is
not or cannot be paid or provided under any policy, plan, program or arrangement
of the Company or any Subsidiary, as the case may be, then the Company shall
itself pay or provide for the payment to the Executive, her dependents and
beneficiaries, of such Employee Benefits. Without otherwise limiting the
purposes or effect of Section 5, Employee Benefits otherwise receivable by the
Executive pursuant to Section 4(a)(ii) or (iii) shall be reduced to the extent
comparable welfare benefits are actually received by the Executive from another
employer during the Continuation Period following the
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Executive's Termination Date, and any such benefits actually received by the
Executive shall be reported by the Executive to the Company.
(b) Without limiting the rights of the Executive at law or in equity,
if the Company fails to make any payment or provide any benefit required to be
made or provided hereunder on a timely basis, the Company shall pay interest on
the amount or value thereof at an annualized rate of interest equal to the so-
called composite "prime rate" as quoted from time to time during the relevant
period in the Midwest Edition of The Wall Street Journal. Such interest shall be
payable as it accrues on demand. Any change in such prime rate shall be
effective on and as of the date of such change.
(c) Notwithstanding any provision of this Agreement to the contrary,
the parties' respective rights and obligations under this Section 4 and under
Sections 5 and 7 shall survive any termination or expiration of this Agreement
or the termination of the Executive's employment following a Change in Control
for any reason whatsoever.
5. Limitation on Payments and Benefits. Notwithstanding any
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provision of this Agreement to the contrary, if any amount or benefit to be paid
or provided under this Agreement would be an "Excess Parachute Payment," within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), or any successor provision thereto, but for the application of
this sentence, then the payments and benefits to be paid or provided under this
Agreement shall be reduced to the minimum extent necessary (but in no event to
less than zero) so that no portion of any such payment or benefit, as so
reduced, constitutes an Excess Parachute Payment except that the foregoing
reduction shall be made only if and to the extent that such reduction would
result in an increase in the aggregate payment and benefits to be provided,
determined on an after-tax basis (taking into account the excise tax imposed
pursuant to Section 4999 of the Code, or any successor provision thereto, any
tax imposed by any comparable provision of state law, and any applicable
federal, state and local income taxes). The determination of whether any
reduction in such payments or benefits to be provided under this Agreement or
otherwise that is required pursuant to the preceding sentence shall be made at
the expense of the Company, if requested by the Executive or the Company, by the
Company's independent accountants. The fact that the Executive's right to
payments or benefits may be reduced by reason of the limitations contained in
this Section 5 shall not of itself limit or otherwise affect any other rights of
the Executive other than pursuant to this Agreement. In the event that any
payment or benefit intended to be provided under this Agreement or otherwise is
required to be reduced pursuant to this Section 5, the Executive shall be
entitled to designate the payments and/or benefits to be so reduced in order to
give effect to this Section 5. The Company shall provide the Executive with all
information reasonably requested by the Executive to permit the Executive to
make such designation. In the event that the Executive fails to make such
designation within 10 business days of the Termination Date, the Company may
effect such reduction in any manner it deems appropriate.
6. No Mitigation Obligation. The Company hereby acknowledges that it
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will be difficult and may be impossible for the Executive to find reasonably
comparable employment following the Termination Date and that the non-
competition covenant contained in Section 8 will further limit the employment
opportunities for the Executive. Accordingly, the Company acknowledges that the
payment of the severance compensation by the Company to the Executive in
accordance with the terms of this Agreement is reasonable and that the Executive
will not be
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required to mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of the Executive hereunder or
otherwise, except as expressly provided in the last sentence of Section 4(a).
7. Legal Fees and Expenses. The Company intends that, except as set
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forth below, the Executive shall not be required to incur legal fees and the
related expenses associated with the interpretation, enforcement or defense of
Executive's rights under this Agreement by litigation or otherwise because the
cost and expense thereof would substantially detract from the benefits intended
to be extended to the Executive hereunder. Accordingly, if the Executive
reasonably believes that the Company has failed to comply with any of its
obligations under this Agreement or the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable or
institutes any litigation or other action or proceeding designed to deny, or to
recover from, the Executive the benefits provided or intended to be provided to
the Executive hereunder, the Company irrevocably authorizes the Executive from
time to time to retain counsel of Executive's choice, at the expense of the
Company as hereafter provided, to advise and represent the Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation or other legal
action, whether by or against the Company or any Director, officer, stockholder
or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Executive's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and the Executive agree that a confidential relationship
shall exist between the Executive and such counsel. The Company will pay and be
solely financially responsible for any and all attorneys' and related fees and
expenses incurred by the Executive in connection with any of the foregoing up to
a maximum amount of $50,000 without respect to whether the Executive prevails,
in whole or in part, in connection with any of the foregoing (which payments
shall be made on a regular, periodic basis upon presentation to the Company of a
statement or statements prepared by such counsel in accordance with its
customary practices) and will reimburse the Executive and be financially
responsible for any and all attorneys' fees and related fees and expenses in
excess of such $50,000 amount incurred by the Executive in connection with any
of the foregoing thereafter if the Executive prevails in connection therewith.
8. Competitive Activity. During a period ending one year following
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the Termination Date, if the Executive has received or is receiving benefits
under Section 4, the Executive shall not, without the prior written consent of
the Company, which consent shall not be unreasonably withheld, engage in any
Competitive Activity.
9. Employment Rights. Nothing expressed or implied in this Agreement
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shall create any right or duty on the part of the Company or the Executive to
have the Executive remain in the employment of the Company prior to or following
any Change in Control. Any termination of employment of the Executive or the
removal of the Executive from the office or position in the Company following
the commencement of any discussion with a third person that ultimately results
in a Change in Control shall be deemed to be a termination or removal of the
Executive after a Change in Control for purposes of this Agreement.
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10. Withholding of Taxes. The Company may withhold from any amounts
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payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
11. Successors and Binding Agreement.
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(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business or assets of the Company, by agreement
in form and substance satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place. This
Agreement shall be binding upon and inure to the benefit of the Company and any
successor to the Company, including without limitation any persons acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor shall thereafter be deemed the "Company" for the purposes of
this Agreement).
(b) This Agreement will inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither the Company nor
the Executive shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Sections 11(a) and 11(b). Without limiting the generality
or effect of the foregoing, the Executive's right to receive payments hereunder
will not be assignable, transferable or delegable, whether by pledge, creation
of a security interest, or otherwise, other than by a transfer by Executive's
will or by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 11(c), the Company
shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated.
12. Notices. For all purposes of this Agreement, all communications,
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including without limitation notices, consents, requests or approvals, required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof confirmed), or five business days after
having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or three business days after having been sent by a
nationally recognized overnight courier service (such as Federal Express or UPS)
addressed to the Company (to the attention of the Secretary of the Company) at
its principal executive office and to the Executive at her principal residence,
or to such other address as either party may have furnished to the other in
writing and in accordance herewith, except that notices of changes of address
shall be effective only upon receipt.
13. Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by and construed in accordance
with the substantive laws of the State of Illinois, without giving effect to the
principles of conflict of laws of such State.
14. Validity. If any provision of this Agreement or the application
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of any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or
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circumstances shall not be affected, and the provision so held to be invalid,
unenforceable or otherwise illegal shall be reformed to the extent (and only to
the extent) necessary to make it enforceable, valid or legal.
15. Miscellaneous. No provision of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, expressed or implied with respect to the subject matter
hereof have been made by either party which are not set forth expressly in this
Agreement. Unless otherwise noted, references to Sections are references to
Sections of this Agreement. The captions used in this Agreement are designed for
convenient reference only and are not to be used for the purpose of interpreting
any provision of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first above written.
AFFILIATED RESEARCH CENTERS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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