PRIVILEGED AND CONFIDENTIAL
(Two Year Severance)
Type A
AMERICAN MEDSERVE CORPORATION
000 XXXXXX XXXX.
SUITE 200
NAPERVILLE, ILLINOIS 60563
(000) 000-0000
August 7, 1997
Xx. Xxxxxxx X. Xxxxxxx
Vice President - CFO
American Medserve Corporation
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Dear Xxxxx:
American Medserve Corporation (the "Company") considers you to be a valued
employee of the Company. In recognition of the value of your continued services
to the Company and its shareholders, the Company proposes the following
agreement (the "Agreement") to provide you with certain severance payments and
benefits if your employment terminates following a "Change of Control" that
occurs on or prior to August 31, 1998 (as defined below).
ARTICLE I.
DEFINITIONS
1.1. DEFINITIONS
Whenever used in this Agreement, the following capitalized terms shall have
the meanings set forth in this Section, certain other capitalized terms being
defined elsewhere in this Agreement.
(a) "Annualized Compensation" means your highest annualized Compensation
within one year of the date on which your employment terminates.
(b) "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 promulgated under the Exchange Act.
(c) "Board of Directors" means the Board of Directors of the Company.
(d) "Change of Control" of the Company means and includes either of the
following which occurs on or prior to August 31, 1998:
(i) Any Person or "group" (as that term is defined in Section 13(d)
of the Exchange Act and the rules and regulations promulgated
thereunder) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company, or of any entity
resulting from a merger or consolidation involving the Company,
representing more than 50% of the combined voting power of the
then outstanding securities of the Company or such entity.
(ii) Any Person or "group" (as that term is defined in Section 13(d)
of the Exchange Act and the rules and regulations promulgated
thereunder) acquires all or substantially all of the assets of
the Company.
(e) "Company" means American Medserve Corporation, a Delaware corporation,
and any successor as provided in Article V.
(f) "Compensation" means and includes all of your base wages and/or salary
paid to you by the Company and/or any of its subsidiaries as
consideration for your services that are includible in your gross
income for federal income tax purposes, plus 50% of your target bonus
(even if not yet paid or payable) under the Company's 1997 bonus plan
and any amounts excludable from your gross income for federal income
tax purposes pursuant to Section 125 or Section 401(k) of the Internal
Revenue Code of 1986, as amended.
(g) "Constructive Termination Event" means any of the following events,
which shall not have been remedied by the Company within 15 days
following written notice from you to the Company of the occurrence of
such event:
(i) The Company or any of its subsidiaries reduces your base salary
or rate of Compensation as in effect immediately prior to the
Change of Control, or otherwise fails to provide to you
compensation and benefit plans, arrangements, policies and
procedures which, taken as a whole, are no less favorable to you
(including on an after-tax basis) than those, taken as a whole,
provided by the Company or any of its subsidiaries to you
immediately prior to the Change of Control.
(ii) Without your express written consent, the Company or any of its
subsidiaries significantly reduces your job authority and
responsibility.
(iii) Without your express written consent, the Company or any of
its subsidiaries requires you to change the location of your job
or office, so that you will be based at a location more than 35
miles from the location of your job or office immediately prior
to the Change of Control.
(iv) A successor company fails or refuses to assume the Company's
obligations under this Agreement, as required by Article V.
(v) The Company or any successor company breaches any of the
material provisions of this Agreement.
(h) "ERISA" means the Employee Retirement Income Security Act of 1974 as
amended.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(j) "Just Cause" means the termination of your employment as a result of
fraud, misappropriation of or intentional material damage to the
property or business of the Company (including its subsidiaries), or
commission of a felony.
-2-
(k) "Person" shall have the meaning ascribed to such term in Section 3 of
the Exchange Act and the rules and regulations promulgated thereunder.
(l) "Severance Payment" means the payment of severance compensation as
provided in Article II.
ARTICLE II.
SEVERANCE PAYMENT
2.1. RIGHT TO SEVERANCE PAYMENT
You shall be entitled to receive a Severance Payment from the Company in
the amount provided in Section 2.2 if (i) there has been a Change of Control,
(ii) you are an active employee (or on sick leave, military leave or any other
employer-approved leave of absence) at the time of the Change of Control, and
(iii) within 730 calendar days from and including the date of the Change of
Control, your employment is involuntarily terminated for any reason (other than
for Just Cause or your death or retirement after age 65) or you voluntarily
terminate your employment following the occurrence of a Constructive Termination
Event.
2.2. AMOUNT OF SEVERANCE PAYMENT
(a) If you become entitled to a Severance Payment within 183 calendar days
following the Change in Control, you shall receive a lump-sum payment
equal to two times one year's Annualized Compensation. If you become
entitled to a Severance Payment after 183 calendar days following the
Change in Control, your Severance Payment shall be an amount equal to
(a) two times one year's Annualized Compensation less (b) two times
one year's Annualized Compensation times a fraction having a numerator
equal to the number of calendar days that have elapsed since the six-
month anniversary of the Change of Control and a denominator equal to
548 calendar days.
(b) The Severance Payment otherwise calculated under this Section 2.2
shall be reduced by the amount of cash severance-type benefits to
which you may be entitled pursuant to any other severance plan,
employment or other agreement, or policy or program of the Company or
any of its subsidiaries; PROVIDED, that if the amount of cash
severance benefits payable under such other severance plan, employment
or other agreement, policy or program is greater then the amount
payable pursuant to this Agreement, you will be entitled to receive
the amounts payable under such other plan, employment or other
agreement, policy or program. Without limiting other payments which
would not constitute "cash severance-type benefits" hereunder, any
cash settlement of stock options, accelerated vesting of stock options
and retirement, pension and other similar benefits shall not
constitute "cash severance-type benefits" for purposes of this
Section 2.2(b).
2.3. VESTING OF OPTIONS
Any unvested stock options for the purchase of Company stock which you are
holding on the date on which you become entitled to a Severance Payment shall
immediately become fully vested.
-3-
2.4. NO DUTY OF MITIGATION
The Company acknowledges that it would be very difficult and generally
impracticable to determine your ability to, or extent to which you may, mitigate
any damages or injuries you may incur by reason of the Change of Control. The
Company has taken this into account in entering into this Agreement and,
accordingly, the Company acknowledges and agrees that you shall have no duty to
mitigate any such damages and that you shall be entitled to receive your entire
Severance Payment regardless of any income which you may receive from other
sources following your termination after any Change in Control.
2.5. TIME OF SEVERANCE PAYMENT
The Severance Payment to which you are entitled shall be paid to you, in
cash and in full, not later than 10 calendar days after the termination of your
employment. If you should die before all amounts payable to you have been paid,
such unpaid amounts shall be paid to your beneficiary under this Agreement or,
if you have not designated such a beneficiary in writing to the Company, to the
personal representative(s) of your estate.
2.6. LIFE AND HEALTH INSURANCE COVERAGE
If you are entitled to receive a Severance Payment under Section 2.1, you
will also be entitled to receive the following additional benefits:
(a) Life insurance coverage for you having a face amount at least equal to
the greater of (i) the amount, if any, in effect for you on the date
of the Change of Control, or (ii) the amount, if any, in effect for
you on the date of termination of your service, such coverage to be
provided under the same plan or plans under which you were covered
immediately prior to the termination of your employment or
substantially similar plan(s) established by the Company or any of its
subsidiaries thereafter. Such life insurance coverage shall be paid
for by the Company to the same extent as if you were still employed by
the Company and you will be required to make such payments as you
would be required to make if you were still employed by the Company.
This coverage will continue following the date of termination of your
employment until the date which is 730 calendar days after the Change
in Control.
(b) Health insurance coverage (including any dental coverage) for you and
your dependents under the same plan or plans under which you were
covered immediately prior to the termination of your employment or
substantially similar plan(s) established by the Company or any of its
subsidiaries thereafter. Such health insurance coverage shall be paid
for by the Company to the same extent as if you were still employed by
the Company, and you will be required to make such payments as you
would be required to make if you were still employed by the Company.
This coverage will continue following the date of termination of your
employment until the date which is 730 calendar days after the Change
in Control.
(c) The benefits for medical coverage under the provisions of
Section 2.6(b) shall end as of the date you become covered under any
other group health plan not maintained by the Company or any of its
subsidiaries which provides equal or greater benefits than such
-4-
plan and which does not exclude any pre-existing condition that you or
your dependents may have a that time.
2.7. WITHHOLDING OF TAXES
The Company may withhold from any amounts payable under this Agreement all
federal, state, city or other taxes required by applicable law to be withheld by
the Company.
2.8. BENEFITS UNDER OTHER PLANS
The benefits that you may be entitled to receive pursuant to Section 2.6
are not intended to be duplicative of any similar benefits to which you may be
entitled from the Company or any of its subsidiaries under any other severance
plan, agreement, policy or program maintained by the Company or any of its
subsidiaries. Accordingly, the benefits to which you are entitled under
Section 2.6 shall be reduced to take account of any other similar benefits to
which you are entitled from the Company or any of its subsidiaries; PROVIDED,
HOWEVER, that if the amount of benefits to which you are entitled under such
other severance plan, agreement, policy or program is greater than the benefits
to which you are entitled under Section 2.6, you will be entitled to receive the
full amount of the benefits to which you are entitled under such other plan,
agreement, policy or program.
2.9. GROSS-UP FOR EXCISE TAXES
(a) In the event that any payment or benefit (within the meaning of
Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended
(the "Code")), to you or for your benefit paid or payable or
distributed or distributable pursuant to the terms of this Agreement
or otherwise in connection with, or arising out of, your employment
with the Company or any of its subsidiaries or a Change of Control (a
"Payment"), would be subject to the excise tax imposed by Section 4999
of the Code or any interest or penalties are incurred by you with
respect to such excise tax (such excise tax, together with any such
interest and penalties, collectively, the "Excise Tax"), then you will
be entitled to receive an additional payment (a "Gross-Up Payment") in
an amount such that after payment by you of all taxes (including any
interest or penalties imposed with respect to such taxes and the
Excise Tax, other than interest and penalties imposed by reason of
your failure to file timely a tax return or pay taxes shown due on
your return), including any Excise Tax imposed upon the Gross-Up
Payment, you retain an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payment.
(b) An initial determination as to whether a Gross-Up Payment is required
pursuant to this Agreement and the amount of such Gross-Up Payment
shall be made at the Company's expense by Xxxxx & Young LLP or, if
such firm is unable to render such a determination, then by an
accounting firm mutually acceptable to you and the Company (the
"Accounting Firm"). The Accounting Firm shall provide its
determination (the "Determination"), together with detailed supporting
calculations and documentation to the Company and you within 15
calendar days of the date on which your right to a Severance Payment
hereunder was triggered (if requested at that time by the Company or
you) or such other time as requested by the Company or by you (in
either case provided that you believe in good faith that any of the
Payment may be subject to the Excise Tax); PROVIDED that if the
Accounting Firm determines that no Excise Tax is payable by you with
respect to a Payment, it shall furnish you with an opinion reasonably
acceptable to
-5-
you that no Excise Tax will be imposed with respect to any such
Payment. Within 10 calendar days of the delivery of the Determination
to you, you shall have the right to dispute the Determination (the
"Dispute"). The Gross-Up Payment, if any, as determined pursuant to
this Section 2.9(b) shall be paid by the Company to you within 5
calendar days of the receipt of the Accounting Firm's determination.
The existence of any Dispute shall not in any way affect your right to
receive the Gross-Up Payment, if any, in accordance with the
Determination. If there is no Dispute, the Determination shall be
binding, final and conclusive upon the Company and you, subject to the
application of Section 2.9(c).
(c) As a result of the uncertainty in the application of Sections 4999 and
280G of the Code, it is possible that a Gross-Up Payment (or a portion
thereof) will be paid which should not have been paid (an "Excess
Payment") or a Gross-Up Payment (or a portion thereof) which should
have been paid will not have been paid (an "Underpayment"). An
Underpayment shall be deemed to have occurred (i) upon notice (formal
or informal) to you from any governmental taxing authority that your
tax liability (whether in respect of your current taxable year or in
respect of any prior taxable year) may be increased by reason of the
imposition of the Excise Tax on a Payment with respect to which the
Company has failed to make a sufficient Gross-Up Payment, (ii) upon a
determination by a court, (iii) by reason of determination by the
Company (which shall include the position taken by the Company,
together with its consolidated group, on its federal income tax
return) or (iv) upon the resolution of any Dispute to your
satisfaction. If an Underpayment occurs, you shall promptly notify
the Company and the Company shall promptly, but in any event at least
10 calendar days prior to the date on which the applicable government
taxing authority has requested payment, pay to you an additional
Gross-Up Payment equal to the amount of the Underpayment plus any
interest and penalties (other than interest and penalties imposed by
reason of your failure to file timely a tax return or pay taxes shown
due on your return) imposed on the Underpayment. An Excess Payment
shall be deemed to have occurred upon a "Final Determination" (as
defined below) that the Excise Tax will not be imposed upon a Payment
(or portion thereof) with respect to which you had previously received
a Gross-Up Payment. A "Final Determination" shall be deemed to have
occurred when you have received from the applicable government taxing
authority a refund of taxes or other reduction in your tax liability
by reason of the Excise Payment and upon either (x) the date a
determination is made by, or an agreement is entered into with, the
applicable governmental taxing authority which finally and
conclusively binds you and such taxing authority, or in the event that
a claim is brought before a court of competent jurisdiction, the date
upon which a final determination has been made by such court and
either all appeals have been taken and finally resolved or the time
for all appeals has expired or (y) the statue of limitations with
respect to your applicable tax return has expired. If an Excess
Payment is determined to have been made, the amount of the Excess
Payment shall be treated as a loan by the Company to you and you shall
pay to the Company on demand (but not less than 10 calendar days after
the determination of such Excess Payment and written notice has been
delivered to you) the amount of the Excess Payment plus interest at an
annual rate equal to the Applicable Federal Rate provided for in
Section 1274(d) of the Code from the date the Gross-Up Payment (to
which the Excess Payment relates) was paid to you until the date of
repayment to the Company.
-6-
(d) Notwithstanding anything contained in this Agreement to the contrary,
in the event that, according to the Determination, an Excise tax will
be imposed on any Payment, the Company shall pay to the applicable
government taxing authorities, as Excise Tax withholding, the amount
of the Excise Tax that the Company has actually withheld from the
Payment.
ARTICLE III.
CONFIDENTIALITY AND NON-COMPETITION
3.1. CONFIDENTIALITY
You acknowledge that all Confidential Information is the exclusive property
of the Company (for purposes of this Article III, "Company" shall include all of
its subsidiaries) and agree to hold all Confidential Information in trust for
the benefit of the Company or any third party as described below. You further
agree not to use in any manner, during your employment and at all times
thereafter so long as it remains confidential, for your benefit or for the
benefit of any other individual or entity, or divulge or convey to any other
individual or entity, any Confidential Information without the prior written
permission of the Company's Chief Executive Officer (the "CEO"), unless (a) it
is pursuant to your job duties while you are employed by the Company or (b) you
are required to do so by legal process; provided that, before making such
disclosure, you will advise the CEO and will cooperate fully in any legal action
the Company may elect to take in order to attempt to prevent such disclosure.
"Confidential Information" shall be defined as all information, knowledge or
data relating to the Company, including, but not limited to, trade secrets;
financial information; technological and engineering data; business applications
and techniques; research and development activities; preferences and identities
of clients, customers, vendors, suppliers and prospective clients, customers,
vendors and suppliers; current, prospective and ongoing business strategies,
plans and techniques; computer and other programs, software, devices, methods,
techniques, processes and inventions; compilations and other materials developed
by or on behalf of the Company (whether in written, graphic, audiovisual,
electronic or other media, including computer software), which has been or may
be subject to reasonable efforts to maintain its confidentiality, which is not
generally known to the public or by competitors of the Company, and which
derives its value from remaining undisclosed. Confidential Information also
includes information in the above categories of any client, customer, supplier,
vendor or other third party doing business with the Company, which has been or
will be disclosed to the Company. Confidential Information does not include any
information that is in the public domain or otherwise is or becomes publicly
available (other than as a result of a wrongful act by you or any owner, agent
or employee of the Company).
3.2. NON-COMPETITION
You agree that, during your employment by the Company and for a period of
two years following the termination of your employment for any reason, you will
not, directly or indirectly, by any means or device whatsoever, for yourself, or
on behalf of or in conjunction with any person, partnership, corporation,
limited liability company or other entity whatsoever, do any one or more of the
following:
(a) Solicit, induce, entice, hire or employ, or attempt to solicit,
induce, entice, hire or employ any employee of the Company, so as to
cause or attempt to cause such employee to leave the employ of the
Company and/or to accept employment with a business which is
competitive with the Company.
-7-
(b) Own, operate, manage, consult for, be affiliated with, be employed by,
or render services to, any person, partnership, corporation or other
entity whatsoever, which is competitive with the Company, or otherwise
compete with the Company, in any geographic areas in the United States
where the Company engages in business as of the date of your
termination; or
(c) Call on, contact, solicit or otherwise seek to deal or deal with any
actual or known potential client, customer, vendor or supplier of the
Company which was an actual or known potential client, customer,
vendor or supplier of the Company during your employment or as of the
date of your termination, whichever may be applicable, for the purpose
of interfering with, disrupting or competing with the business of the
Company.
3.3. ENFORCEMENT
(a) You acknowledge that any breach of this Article III would cause
irreparable harm to the Company, and that money damages would be an
inadequate remedy for any such breach. In the event you breach or
threaten to breach any provision of this Article III, the Company or
its successors or assigns, in addition to other rights and remedies
existing in its or their favor, may apply to any court of competent
jurisdiction for specific performance, injunctive and/or other
equitable relief in order to enforce or prevent any violation of this
Article III.
(b) Notwithstanding the requirements of Section 3.3(a), any and all rights
which you may have under this Agreement, including your rights with
respect to the Severance Payment and benefits under Article II, shall
terminate and any payments or other benefits which you are receiving
from the Company shall automatically cease and otherwise be forfeited
in the event you violate any provision of this Article III.
3.4. REVISION
If, at the time of enforcement of this Article III, a court holds that the
restrictions stated herein are unreasonable because they are overly broad, under
the circumstances then existing, as to time, geographic area and/or scope of
conduct and therefore are unenforceable, the parties agree that such court shall
revise this Article III by substituting the maximum time period, geographic area
and/or scope of conduct deemed reasonable and enforceable under such
circumstances.
ARTICLE IV.
OTHER RIGHTS AND BENEFITS NOT AFFECTED
4.1. OTHER BENEFITS
This Agreement does not provide a pension for you nor shall any payment
hereunder be characterized as deferred compensation. Except as set forth in
Sections 2.2(b) and 2.8, neither the provisions of this Agreement nor the
Severance Payment provided for hereunder shall reduce any amounts otherwise
payable, or in any way diminish your rights as an employee, whether existing now
or hereafter, under any benefit, incentive, retirement, stock option, stock
bonus or stock purchase plan or any employment agreement or other plan or
arrangement not related to severance. Any such other amounts or benefits
payable shall be included, as necessary, for making any of the calculations
required under Section 2.9.
-8-
4.2. EMPLOYMENT STATUS
This Agreement does not constitute a contract of employment or impose on
you any obligation to remain in the employ of the Company, nor does it impose on
the Company or any of its subsidiaries any obligation to retain you in your
present or any other position. Nothing in this Agreement shall in any way
require the Company or any of its subsidiaries to provide you with any severance
benefits prior to a Chance of Control, nor shall this Agreement ever be
construed in any way as establishing any policies or requirements of the Company
or any of its subsidiaries for the termination of your employment or the payment
of severance benefits to you if your employment terminates prior to a Change in
Control, nor shall anything in this Agreement in any way affect the right of the
Company or any of its subsidiaries in its absolute discretion to change prior to
a Change of Control one or more benefit plans.
ARTICLE V.
SUCCESSOR TO COMPANY
The Company shall require any successor or assignee, whether direct or indirect,
by purchase, merger, consolidation or otherwise, to all or substantially all of
the business or assets of the Company, expressly and unconditionally to assume
and agree to perform the Company's obligations under this Agreement. In such
event, the term "Company," as used in this Agreement, shall mean the Company as
herein before defined and any successor or assignee to the business or assets
which by reason hereof becomes bound by the terms and provisions of this
Agreement.
ARTICLE VI.
LEGAL FEES AND EXPENSES
The Company shall pay as they become due all legal fees, costs of litigation and
other expenses incurred in good faith by you as a result of the Company's
refusal or failure to make the Severance Payment to which you become entitled
under this Agreement, as a result of the Company's contesting the validity,
enforceability or interpretation of this Agreement or of your right to benefits
hereunder, or with regard to any Dispute (as defined in Section 2.9(b)). You
shall be conclusively presumed to have acted in good faith unless a court makes
a final determination not otherwise subject to appeal to the contrary.
ARTICLE VII.
ARBITRATION
Except as otherwise provided in Section 2.9, you shall have the right and option
(but not the obligation) to elect (in lieu of litigation) to have any dispute or
controversy arising under or in connection with this Agreement, including any
dispute under Section 2.9, settled by arbitration, conducted before a panel of
three arbitrators sitting in a location selected by you within 50 miles from the
location of your job with the Company or any of its subsidiaries, in accordance
with the rules of the American Arbitration Association ("AAA") then in effect.
The arbitrator will be selected by mutual agreement or from a list submitted by
AAA in accordance with AAA rules. All expenses of such arbitration, including
the fees and expenses of your counsel, shall be borne, and paid as incurred, by
the Company; provided, however, that if, in the opinion of the arbitrator, any
claim by you was unreasonable, the arbitrator may assess, as part of his/her
award, all or any part of the arbitration expenses related to such unreasonable
claim against you. Judgment may be entered on the award of the arbitrator in
any court having jurisdiction. Pending the arbitrator's decision as to issuance
of an award, the Company shall pay the Severance Payment and benefits to you
pursuant to Article II, provided you
-9-
offer suitable security for repayment in the event that the award, or any part
thereof, is not in you favor, such as a bond, letter of credit or escrow
arrangement.
ARTICLE VIII.
MISCELLANEOUS
8.1. APPLICABLE LAW
To the extent not preempted by the laws of the United States and in the
interest of interpreting this Agreement in a uniform manner with other similar
agreements being entered into by the Company with other of its and its
subsidiaries' employees regardless of the jurisdiction in which you are employed
or any other factor, the laws of the State of Illinois shall be the controlling
law in all matters relating to this Agreement, regardless of the choice-of-law
rules of the State of Illinois or any other jurisdiction.
8.2. CONSTRUCTION
No term or provision of this Agreement shall be construed so as to require
the commission of any act contrary to law, and wherever there is any conflict
between any provision of this Agreement and any present or future statute, law,
ordinance, or regulation contrary to which the parties have no legal right to
contract, the latter shall prevail, but in such event the affected provision of
this Agreement shall be curtailed and limited only to the extent necessary to
bring such provision within the requirements of the law.
8.3. SEVERABILITY
If a provision of this Agreement shall be held illegal or invalid, the
illegality or invalidity shall not affect the remaining parts of this Agreement
and this Agreement shall be construed and enforced as if the illegal or invalid
provision had not been included.
8.4. HEADINGS
The Section headings in this Agreement are inserted only as a matter of
convenience, and in no way define, limit, or extend or interpret the scope of
this Agreement or of any particular Section.
8.5. NOTICE OF TERMINATION
Following a Change in Control, any purported termination of your employment
by the Company or any of its subsidiaries (not involving a Constructive
Termination Event) shall be communicated by a written notice of termination from
the Company to you, which notice shall indicate the specific termination
provision in this Agreement, if any, relied upon and which sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of your employment under any provision so indicated. The failure to
provide such notice shall create a rebuttable presumption that you are entitled
to a Severance Payment and the other benefits provided by this Agreement.
8.6. ASSIGNABILITY
Neither this Agreement nor any right or interest therein shall be
assignable or transferable (whether by pledge, grant of a security interest, or
otherwise) by you, your beneficiaries or legal representatives, except by will
or by the laws of descent and distribution. This Agreement shall be
-10-
binding upon and shall inure to the benefit of the Company, its successors and
assigns, and you and shall be enforceable by them and your legal personal
representatives.
8.7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Company and you
regarding the subject matter hereof.
8.8. TERM
If a Change of Control has not occurred prior to September 1, 1998, this
Agreement shall expire and be of not further force and effect on such date;
provided that the Board of Directors of the Company may, at any time prior to
the expiration hereof, extend the term of this Agreement for a term of up to two
years, including changing the date set forth in the second line of the
definition of "Change of Control," without any further action on your part.
If a Change of Control occurs prior to September 1, 1998, this Agreement
shall continue in full force and effect, and shall not terminate or expire until
the expiration of 730 calendar days from and including the date of the Change of
Control, at which time this Agreement shall terminate except if you become
entitled to the Severance Payment and benefits hereunder prior to such time. If
you become so entitled to a Severance Payment and benefits hereunder, this
Agreement shall continue and be effective until you (or the person(s) specified
in Section 2.5) shall have received in full the Severance Payment and other
benefits to which you are entitled under this Agreement, at which time this
Agreement shall terminate for all purposes.
8.9. AMENDMENT
Except as set forth in Section 8.8, no provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by you and the Company. No waiver by the
Company or you at any time or any breach by the other party 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 any prior or subsequent time.
8.10. NOTICES
For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, addressed to the respective addresses last given by
each party to the other, provided that all notices to the Company shall be
directed to the attention of the Board of Directors with a copy to the Secretary
of the Company. All notices and communications shall be deemed to have been
received on the date of delivery thereof or on the third business day after the
mailing thereof, except that notice of change of address shall be effective only
upon actual receipt. No objection to the method of delivery may be made if the
written notice or other communication is actually received.
-11-
8.11. ADMINISTRATION
The Company has entered into agreements similar to this Agreement herein
with other employees of the Company or its subsidiaries. These agreements,
taken together, constitute a welfare benefit plan within the meaning of
Section 3(1) of ERISA. The Administrator of such plan, within the meaning of
Section 3(16) of ERISA, and the Named Fiduciary thereof, within the meaning of
Section 402 of ERISA, is the Company.
* * * * *
If this Agreement is acceptable to you, please sign the enclosed copy of
this Agreement in the space provided below and return it to me IMMEDIATELY.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
-12-
