Exhibit (10)o
CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT dated as of December , 1997, among XXXXXXX
CORPORATION, a Delaware corporation (the "Company"), PEPSI-COLA GENERAL
BOTTLERS, INC., a Delaware corporation ("Pepsi General"), and
____________________________ (the "Executive").
WHEREAS, the Company's Board of Directors has determined that, in light of
the importance of the Executive's continued services to the stability and
continuity of management of the Company and its subsidiaries, it is appropriate
and in the best interests of the Company and of its shareholders to reinforce
and encourage the Executive's continued disinterested attention and undistracted
dedication to his duties in the potentially disturbing circumstances of a
possible change in control of the Company by providing some degree of personal
financial security;
WHEREAS, Pepsi General is an 80% owned Subsidiary of the Company;
WHEREAS, on December 31, 1997, Xxxxxxx intends to distribute to its
shareholders all of the issued and outstanding shares of common stock of its
Subsidiaries, Hussmann International, Inc. and Midas Group, Inc. (such date, or
any subsequent date on which such distribution shall finally occur being
hereinafter referred to as the "Effective Date");
WHEREAS, in order to induce the Executive to remain in the employ of the
Company or a subsidiary of the Company (a "Subsidiary"), following the Effective
Date, the Company's Board of Directors has determined that it is desirable to
pay the Executive the severance compensation set forth below if the Executive's
employment with the Company or a Subsidiary terminates in one of the
circumstances described below following a Change in Control (as defined below);
and
WHEREAS, Xxxxxxx and/or a Subsidiary have previously entered into Severance
Compensation and Change in Control Agreements with certain executive officers of
the Company and its Subsidiaries, and this Agreement shall, as of the Effective
Date, replace in its entirety any and all such prior Agreements ("Prior
Agreements") to which the Executive is a party;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the Company and the Executive agree as follows:
1. Term of Agreement. (a) The term of this Agreement shall commence on the
Effective Date and shall terminate, except to the extent that any
obligation of the Company hereunder remains unpaid as of such time, on
the earlier to occur of the date on which the Executive reaches age 65
and the third anniversary of the Effective Date, subject to extension
as provided in Section 1(b) below; provided, however, that this
Agreement shall continue in effect until the earlier to occur of the
date on which the Executive reaches age 65 and the date three years
beyond the initial or any extended date of termination of this
Agreement if a Change in Control shall have occurred prior to such date
of termination of this Agreement (and shall continue for such
additional period as any obligation of the Company under this Agreement
shall remain unpaid).
(b) Commencing on the date after the Effective Date and continuing on
each date thereafter (each such date being hereinafter referred to
as a "Renewal Date"), the term of this Agreement shall be
automatically extended so as to terminate three years thereafter,
unless at least 60 days prior to a specified Renewal Date the
Company shall give written notice to the Executive that the term
of this Agreement shall not be so extended.
2. Change in Control. No compensation shall be payable under this
Agreement unless and until (a) there shall have been a Change in
Control while the Executive is still an employee of the Company or a
Subsidiary, and (b) the Executive's employment by the Company or a
Subsidiary thereafter shall have been terminated in accordance with
Section 3 of this Agreement.
For purposes of this Agreement, a "Change in Control" shall mean:
(i) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of beneficial ownership within the meaning of
Rule 13d-3 promulgated under the Exchange Act, of 25% or more of
either (A) the then outstanding shares of common stock of the
Company (the "Outstanding Common Stock") or (B) the combined
voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Voting Securities"); excluding, however, the
following: (1) any acquisition directly from the Company
(excluding any acquisition resulting from the exercise of an
exercise, conversion or exchange privilege unless the security
being so exercised, converted or exchanged was acquired directly
from the Company), (2) any acquisition by the Company, (3) any
acquisition by an employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (4) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(A), (B) and (C) of clause (iii) in this definition of Change in
Control;
(ii) individuals who, as of the Effective Date, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of such Board; provided
that any individual who becomes a director of the Company
subsequent to the Effective Date whose election, or nomination for
election by the Company's shareholders, was approved by the vote
of at least a majority of the directors then comprising the
Incumbent Board shall be deemed a member of the Incumbent Board;
and provided further, that any individual who was initially
elected as a director of the Company as a result of an actual or
threatened election contest, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act, or any other
actual or threatened solicitation of proxies or consents by or on
behalf of any Person other than the Board shall not be deemed a
member of the Incumbent Board;
(iii)the consummation of a reorganization, merger or consolidation of
the Company or sale or other disposition of all or substantially
all of the assets of the Company (a "Corporate Transaction");
excluding, however, a Corporate Transaction pursuant to which (A)
all or substantially all of the individuals or entities who are
the beneficial owners, respectively, of the Outstanding Common
Stock and the Outstanding Voting Securities immediately prior to
such Corporate Transaction will beneficially own, directly or
indirectly, more than 66-2/3% of, respectively, the outstanding
shares of common stock, and the combined voting power of the
outstanding securities of such corporation entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the
Company's assets either directly or indirectly) in substantially
the same proportions relative to each other as their ownership,
immediately prior to such Corporate Transaction, of the
Outstanding Common Stock and the Outstanding Voting Securities, as
the case may be, (B) no Person (other than: the Company; any
employee benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the Company; the
corporation resulting from such Corporate Transaction; and any
Person which beneficially owned, immediately prior to such
Corporate Transaction, directly or indirectly, 25% or more of the
Outstanding Common Stock or the Outstanding Voting Securities, as
the case may be) will beneficially own, directly or indirectly,
25% or more of, respectively, the outstanding shares of common
stock of the corporation resulting from such Corporate Transaction
or the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of
directors and (C) individuals who were members of the Incumbent
Board will constitute at least a majority of the members of the
board of directors of the corporation resulting from such
Corporate Transaction; or
(iv) the consummation of a plan of complete liquidation or dissolution
of the Company.
3. Termination Following Change in Control. (a) If a Change in Control
shall have occurred while the Executive is still an employee of the
Company or a Subsidiary, the Executive shall be entitled to the
compensation provided in Section 4 of this Agreement upon the
subsequent termination of the Executive's employment with the Company
or Subsidiary within three years of the date upon which the Change in
Control shall have occurred, unless such termination is as a result of
(i) the Executive's death, (ii) the Executive's Disability (as defined
in Section 3(b) below), (iii) the Executive's Retirement (as defined in
Section 3(c) below), (iv) the Executive's termination for Cause (as
defined in Section 3(d) below), or (v) the Executive's decision to
terminate employment other than for Good Reason (as defined in Section
3(e) below). Notwithstanding anything to the contrary in this
Agreement, if a Change in Control occurs and if the Executive's
employment with the Company or a Subsidiary was terminated prior to the
date on which the Change in Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (i)
was at the request of a third party who had taken steps reasonably
calculated to effect the Change in Control, or (ii) otherwise arose in
connection with or anticipation of the Change in Control, then for all
purposes of this Agreement, the termination of the Executive's
employment shall be deemed to have occurred immediately following the
Change in Control.
(b) Disability. If, as a result of the Executive's incapacity due to a
medically determinable physical or mental illness which can be
expected to be permanent or of indefinite duration (as certified
in writing by a physician selected by the Company and reasonably
acceptable to the Executive), the Executive shall qualify for
benefits under the long-term disability plan of the Company or a
Subsidiary and shall have been absent from his duties with the
Company or a Subsidiary on a full-time basis for a continuous
period of six months commencing with the date of the Change in
Control or the first day of such absence (whichever is later) the
Company or such Subsidiary may terminate the Executive's
employment for "Disability" without the Executive being entitled
to the compensation provided in Section 4.
(c) Retirement. The term "Retirement" as used in this Agreement shall
mean termination by the Company or a Subsidiary or the Executive
of the Executive's employment based on the Executive having
reached age 65 without the Executive being entitled to the
compensation provided in Section 4. Termination based on
"Retirement" shall not include, for purposes of this Agreement,
the Executive's taking of early retirement by reason of a
termination by the Executive of his employment for Good Reason.
(d) Cause. The Company or a Subsidiary may terminate the Executive's
employment for Cause without the Executive being entitled to the
compensation provided in Section 4. For purposes of this
Agreement, the Company or Subsidiary shall have "Cause" to
terminate the Executive's employment only on the basis of (i) the
Executive's wilful and continued failure substantially to perform
his duties with the Company or Subsidiary (other than any such
failure resulting from his incapacity due to physical or mental
illness or any such failure resulting from the Executive's
termination for Good Reason), after a written demand for
substantial performance is delivered to the Executive by the Chief
Executive Officer (or if the Executive is Chief Executive Officer,
by the Board of Directors) which specifically identifies the
manner in which the Chief Executive Officer (or the Board of
Directors if the Executive is Chief Executive Officer) believes
that the Executive has not substantially performed his duties, or
(ii) the Executive's wilful engagement in gross conduct materially
and demonstrably injurious to the Company or a Subsidiary. For
purposes of this subsection, no act or failure to act on the
Executive's part shall be considered "wilful" unless done, or
omitted to be done, by the Executive not in good faith and without
reasonable belief that his action or omission was in the best
interest of the Company or a Subsidiary. The Executive shall not
be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a written statement of
the Chief Executive Officer (or if the Executive is Chief
Executive Officer, a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds of the entire
membership of the Board of Directors at a duly convened meeting of
the Board of Directors), finding that in the good faith opinion of
the Chief Executive Officer (or the Board of Directors if the
Executive is Chief Executive Officer) the Executive was guilty of
conduct set forth in clause (i) or (ii) of the second sentence of
this Section 3(d) and specifying the particulars thereof in
detail.
(e) Good Reason. The Executive may terminate the Executive's
employment with the Company or a Subsidiary for Good Reason within
three years after a Change in Control and during the term of this
Agreement and become entitled to the compensation provided in
Section 4. For purposes of this Agreement, "Good Reason" shall
mean any of the following events, unless it occurs with the
Executive's express prior written consent:
(i) the assignment to the Executive by the Company or a
Subsidiary of any duties inconsistent with, or a diminution
of, the Executive's position, duties, titles, offices,
responsibilities or status with the Company or a Subsidiary
immediately prior to a Change in Control, or any removal of
the Executive from or any failure to reelect the Executive
to any of such positions, except in connection with the
termination of the Executive's employment for Disability,
Retirement or Cause or as a result of the Executive's death
or by the Executive other than for Good Reason;
(ii) a reduction by the Company or a Subsidiary in the
Executive's base salary as in effect on the date hereof or
as the same may be increased from time to time during the
term of this Agreement or the Company's or Subsidiary's
failure to increase (within 15 months of the Executive's
last increase in base salary) the Executive's base salary
after a Change in Control in an amount which is
substantially similar, on a percentage basis, to the average
percentage increase in base salary for all officers of the
Company or the Subsidiary effected during the preceding 12
months, other than a reduction of the Executive's base
salary pursuant to the terms of the short-term or long-term
disability plans of the Company or a Subsidiary during a
period in which the Executive is disabled (within the
meaning of such plan or plans) and qualifies for benefits
under such plan or plans;
(iii) any failure by the Company or a Subsidiary to continue in
effect any benefit plan or arrangement (including, without
limitation, any pension or retirement plan, employee stock
ownership plan, group life insurance plan, medical, dental,
accident and disability plans and educational assistance
reimbursement plan) in which the Executive is participating
at the time of a Change in Control (or to substitute and
continue other plans providing the Executive with
substantially similar benefits) (hereinafter referred to as
"Benefit Plans"), the taking of any action by the Company or
a Subsidiary which would adversely affect the Executive's
participation in or materially reduce the Executive's
benefits under any such Benefit Plan or deprive the
Executive of any material fringe benefit enjoyed by the
Executive at the time of a Change in Control, or the failure
by the Company or Subsidiary to provide the Executive with
the number of paid vacation days to which the Executive is
entitled in accordance with the vacation policies in effect
at the time of a Change in Control;
(iv) any failure by the Company or a Subsidiary to continue in
effect any incentive plan or arrangement (including, without
limitation, the Company's annual bonus and contingent bonus
arrangements and credits and the right to receive
performance awards and similar incentive compensation
benefits) in which the Executive is participating at the
time of a Change in Control (or to substitute and continue
other plans or arrangements providing the Executive with
substantially similar benefits) (hereinafter referred to as
"Incentive Plans") or the taking of any action by the
Company or a Subsidiary which would adversely affect the
Executive's participation in any such Incentive Plan or
reduce the Executive's benefits under any such Incentive
Plan in an amount which is not substantially similar, on a
percentage basis, to the average percentage reduction of
benefits under any such Incentive Plan effected during the
preceding 12 months for all officers of the Company or a
Subsidiary participating in any such Incentive Plan;
(v) any failure by the Company or a Subsidiary to continue in
effect any plan or arrangement to receive securities of the
Company or awards the value of which is derived from
securities of the Company (including, without limitation,
the Company's Stock Incentive Plan and any other plan or
arrangement to receive and exercise stock options, stock
appreciation rights, restricted stock, phantom stock or
grants thereof or to acquire stock or other securities of
the Company) in which the Executive is participating at the
time of a Change in Control (or to substitute and continue
plans or arrangements providing the Executive with
substantially similar benefits) (hereinafter referred to as
"Securities Plans") or the taking of any action by the
Company or a Subsidiary which would adversely affect the
Executive's participation in or materially reduce the
Executive's benefits under any such Securities Plan;
(vi) a relocation of the Company's principal executive offices or
the Executive's relocation to any metropolitan area other
than the metropolitan area in which the Executive performed
the Executive's duties immediately prior to a Change in
Control;
(vii) a substantial increase in the Executive's business travel
obligations over such obligations as they existed at the
time of a Change in Control;
(viii)any material breach by the Company or a Subsidiary of any
provision of this Agreement;
(ix) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company pursuant
to Section 7(a); or
(x) any purported termination by the Company or a Subsidiary of
the Executive's employment which is not effected pursuant to
a Notice of Termination satisfying the requirements of
Section 3(f), including any purported termination of
employment under the circumstances described in the last
sentence of Section 3(a).
(f) Notice of Termination. Any termination of the Executive's
employment by the Company or a Subsidiary pursuant to Section
3(b), 3(c) or 3(d) or by the Executive pursuant to Section 3(e)
shall be communicated to the other party by a Notice of
Termination. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which shall indicate the
specific termination provision in this Agreement relied upon and
which sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. For purposes of this
Agreement, no such purported termination by the Company or
Subsidiary shall be effective without such Notice of Termination.
(g) Date of Termination. "Date of Termination" shall mean (a) if the
Executive's employment is terminated by the Company or a
Subsidiary for Disability, 30 days after Notice of Termination is
given to the Executive (provided that the Executive shall not have
returned to the performance of the Executive's duties on a
full-time basis during such 30-day period) or (b) if the
Executive's employment is terminated for any other reason, the
date on which a Notice of Termination is given.
4. Severance Compensation upon Termination. (a) If the Executive's
employment by the Company or a Subsidiary is terminated (i) by the
Company or Subsidiary pursuant to Section 3(b), 3(c) or 3(d) or by
reason of death or (ii) by the Executive other than for Good Reason,
the Executive shall not be entitled to any severance compensation under
this Agreement, but the absence of the Executive's entitlement to any
benefits under this Agreement shall not prejudice the Executive's right
to the full realization of any and all other benefits to which the
Executive shall be entitled pursuant to the terms of any employee
benefit plans or other agreements or policies of the Company or a
Subsidiary in which the Executive is a participant or to which the
Executive is a party.
(b) If the Executive's employment by the Company or a Subsidiary is
terminated (x) by the Company or such Subsidiary other than
pursuant to Section 3(b), 3(c) or 3(d) or by reason of death or
(y) by the Executive for Good Reason, then the Executive shall be
entitled to the severance compensation provided below:
(i) In lieu of any further salary or incentive payments to the
Executive for periods subsequent to the Date of Termination,
the Company shall pay in cash as severance compensation to
the Executive at the time specified in subsection (ii)
below, a lump-sum severance payment equal to three (3) times
the Executive's Adjusted Annual Compensation. For purposes
of this Agreement, "Adjusted Annual Compensation" shall mean
the sum of (x) an amount equal to the highest level of the
Executive's annual base salary in effect (calculated prior
to any deferral of salary, qualified or nonqualified)
between the time of the Change in Control and the Date of
Termination, (y) an amount equal to the greater of the
amounts earned by the Executive under the annual incentive
compensation plan of the Company or a Subsidiary (or under
the Xxxxxxx Management Incentive Compensation Plan, if
applicable) for the two preceding calendar years (calculated
prior to any deferral of salary, qualified or nonqualified),
or, if the Executive has participated in such plan for only
one year, an amount equal to the amount earned under such
plan for the preceding calendar year, and (z) an amount
equal to one-third of the sum of the amounts of the current
"Target" values for the Executive under any annual or long
term incentive compensation plans of the Company or a
Subsidiary, such Target values to be prorated from the
beginning of the applicable measurement period for each such
plan through the end of the month in which the Date of
Termination occurs.
(ii) The severance compensation provided for in subsection (i)
above shall be paid not later than the 10th day following
the Date of Termination; provided, however, that, if the
amount of such compensation cannot be finally determined on
or before such day, the Company shall pay to the Executive
on such day an estimate, as determined in good faith by the
Company, of the minimum amount of such compensation and
shall pay the remainder of such compensation (together with
interest at the rate provided in Section 1274(b)(2)(B) of
the Internal Revenue Code of 1986, as amended (the "Code"))
as soon as the amount thereof can be determined, but in no
event later than the 30th day after the Date of Termination.
In the event that the amount of the estimated payment
exceeds the amount subsequently determined to have been
payable, such excess shall constitute a loan by the Company
to the Executive payable on the 30th day after demand by the
Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code, commencing on the 31st
day following such demand).
(iii) The Company shall arrange to provide the Executive for a
period of thirty-six (36) months following the Date of
Termination or until the Executive's earlier death, with
life, medical, dental, accident and disability insurance
benefits and a package of "executive benefits", including to
the extent applicable capital assessments and dues for
pre-existing club memberships and the use of an automobile
or an allowance therefor (collectively, "Employment
Benefits"), substantially similar to those which the
Executive was receiving immediately prior to the Date of
Termination.
(iv) During the term of this Agreement and through the period of
thirty-six (36) months following the Date of Termination,
all benefits under any pension or retirement plans, employee
stock ownership plan or any other plan or agreement relating
to retirement benefits (collectively, "Retirement Benefits")
in which the Executive participates shall continue to accrue
to the Executive, crediting of service of the Executive with
respect to Retirement Benefits shall continue, and the
Executive shall be entitled to receive all Retirement
Benefits provided to the Executive as a fully vested
participant under any such plan or agreement relating to
retirement benefits. No contributions shall be required to
be made by the Executive to any plan providing for employee
contributions following the Date of Termination. To the
extent that the amount of any Retirement Benefits are or
would be payable from a nonqualified plan, the Company
shall, as soon as practicable following the Date of
Termination (but in no event later than the 30th day after
the Date of Termination), pay directly to the Executive in
one lump sum, cash in an amount equal to the additional
benefits that would have been provided had such accrual or
crediting been taken into account in calculating such
Retirement Benefits. Such lump sum payment shall be
calculated as provided in the relevant plan and, in the case
of a defined contribution plan, shall include an amount
equal to the gross amount of the maximum employer
contributions.
(c) In the event the severance compensation payable under this Section
4, either alone or together with any other payments to the
Executive from the Company or a Subsidiary (including, but not
limited to, payments under the Company's Stock Incentive Plan or
any agreement or award issued pursuant to such Plan or any
successor plan), would constitute a "parachute payment" (as
defined in Section 280G of the Code), and subject the Executive to
the excise tax imposed by Section 4999 of the Code, the Company
shall pay the Executive, as additional severance compensation
hereunder and payable at the same time or times as such severance
compensation, the amount of such excise tax and any additional
taxes payable by the Executive by reason of such payment (on the
basis of a customary "gross-up" formula), as calculated by the
Company. The Company agrees to indemnify and hold harmless the
Executive from and against any liability for the payment of
additional taxes arising from any deficiency in the amount of such
excise tax and any additional taxes thereon so calculated by the
Company, together with any interest or penalties applicable
thereto; provided, however, that it shall be a condition of this
obligation to indemnify and hold harmless the Executive that the
Executive shall have timely notified the Company of any proposed
assessment relating to any claimed deficiency therein and offered
the Company the right to contest such assessment or participate
in, at the expense of the Company, any proceeding relating
thereto.
5. Payment of Taxes; Continuation of Employment. Notwithstanding any other
provision of this Agreement or the premises hereto, in the event the
Executive is entitled to receive compensation (whether in the form of
cash, securities or other form of compensation) under or pursuant to
any plan or agreement of or with the Company or a Subsidiary as the
result of a Change in Control, the Company shall pay to the Executive
any applicable excise tax, and any taxes thereon, and shall indemnify
and hold harmless the Executive in respect thereof, as provided in
Section 4(c) above, regardless of whether the employment of the
Executive with the Company or a Subsidiary shall have terminated.
6. No Obligation To Mitigate Damages; No Effect on other Contractual
Rights. (a) The Executive shall not be required to mitigate damages or
the amount of any payment provided for under this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned
by the Executive after the termination of the Executive's employment
with the Company or a Subsidiary.
(b) The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in
any way diminish the Executive's existing rights, or rights which
would accrue solely as a result of the passage of time, under any
Benefit Plan, Incentive Plan or Securities Plan, employment
agreement or other contract, plan or arrangement of the Company or
any Subsidiary.
7. Successor to the Company. (a) The Company will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all the business and/or assets of
the Company, by agreement in form and substance satisfactory to the
Executive, expressly, absolutely and unconditionally to assume 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 or assignment had taken place. Any failure of the Company to
obtain such agreement prior to the effectiveness of any such succession
or assignment shall be a material breach of this Agreement and shall
entitle the Executive to terminate the Executive's employment for Good
Reason. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor or assign to its business and/or
assets as aforesaid which executes and delivers the agreement provided
for in this Section 7 or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts are still
payable to the Executive hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisees, legatees, or
other designees or, if there be no such designee, to the
Executive's estate.
8. Notices. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be given by United States certified mail (return receipt
requested, postage prepaid), by personal delivery or by a nationally
recognized express delivery service, and shall be deemed to have been
given when actually received, as follows:
If to the Company or Pepsi General:
[Xxxxxxx Corporation]
[Pepsi-Cola General Bottlers, Inc.]
0000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention of: General Counsel
If to the Executive, to the Executive's home address as shown on the Company's
personnel records; or such other address as either party may have given to the
other in writing in accordance herewith.
9. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver 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
of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements 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. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
10. Employment. The Executive agrees to be bound by the terms and
conditions of this Agreement and to remain in the employ of the Company
or a Subsidiary during any period following any public announcement by
any person of any proposed transaction or transactions which, if
effected, would result in a Change in Control until a Change in Control
has taken place or, in the opinion of the Board of Directors, such
person has abandoned or terminated its efforts to effect a Change in
Control. Subject to the foregoing and to the last sentence of Section
3(a), nothing contained in this Agreement shall impair or interfere in
any way with the right of the Executive to terminate the Executive's
employment or the right of the Company or any Subsidiary to terminate
the employment of the Executive with or without cause prior to a Change
in Control. Nothing contained in this Agreement shall be construed as a
contract of employment between the Company or any Subsidiary and the
Executive or as a right of the Executive to continue in the employ of
the Company or any Subsidiary, or as a limitation of the right of the
Company or any Subsidiary to discharge the Executive with or without
cause prior to a Change in Control.
11. Validity. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and
effect.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
13. Legal Fees and Expenses. (a) The Company shall pay all legal fees and
expenses which the Executive may incur as a result of the Company or a
Subsidiary contesting the validity, enforceability or the Executive's
interpretation of, or determinations under, this Agreement.
(b) The Company shall pay all legal fees and expenses which the
Executive may incur by reason of the termination of the
Executive's employment, other than as a result of (i) the
Executive's death, (ii) the Executive's Disability (as defined in
Section 3(b) above), (iii) the Executive's Retirement (as defined
in Section 3(c) above), (iv) the Executive's termination for Cause
(as defined in Section 3(d) above), or (v) the Executive's
decision to terminate employment other than for Good Reason (as
defined in Section 3(e) above; such fees and expenses shall
include, without limitation, those incurred in contesting or
disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement.
(c) The Company shall pay all legal fees and expenses which the
Executive may incur as a result of any tax assessments or
proceedings arising from payments made by the Company pursuant to
Section 4(c) or Section 5 above.
(d) If the payment by the Company of any legal fees and expenses
pursuant to this Section 13 shall constitute compensation to the
Executive, the Company agrees, as a separate and independent
undertaking, to pay to the Executive upon demand any and all
taxes, of whatever nature or description, applicable to such
payment, together with any taxes thereon (on the basis of a
customary "gross-up" formula).
14. Confidentiality. The Executive shall retain in confidence any and all
confidential information known to the Executive concerning the Company
and its Subsidiaries and their business so long as such information is
not otherwise publicly disclosed.
15. Effective Date of this Agreement and Termination of Prior Agreement(s).
This Agreement shall become effective on the Effective Date, whereupon
any and all Prior Agreements shall be terminated and be of no further
force or effect. Xxxxxxx and Pepsi General shall each be and be deemed
to be a third-party beneficiary of this Section 15.
16. Change in Control of Pepsi General. In the event there shall be a
Change in Control of Pepsi General, within the meaning of clauses (i),
(iii) or (iv) of Section 2 of this Agreement (as if Pepsi General were
the "Company" thereunder), and if the Executive's employment with the
Company or a Subsidiary thereafter shall have been terminated in
accordance with Section 3 of this Agreement, then the Executive shall
be entitled to the compensation and all other rights and benefits
provided for in this Agreement to the same tenor and effect as if a
Change in Control of the Company had occurred; provided, however, that
for the purposes of this Section 16, the exclusion contained in
subclause (1) of clause (i) of Section 2 of this Agreement shall not
apply. IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
XXXXXXX CORPORATION
By
Name:
Title:
PEPSI-COLA GENERAL BOTTLERS, INC.
By
Name:
Title:
EXECUTIVE
By
Name:
