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EXHIBIT 10c
5/21/99
CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT dated ______________, 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 a wholly-owned Subsidiary of the
Company;
WHEREAS, in order to induce the Executive to remain in the
employ of the Company or a subsidiary of the Company (a "Subsidiary"), 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);
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 date hereof (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
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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 50% 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 by the Company, (2) any acquisition by an
employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company or (3) 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
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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 80% 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, 50% 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
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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
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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,
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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
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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 Revised 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
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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.
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(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
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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).
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(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.
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(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 Revised 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
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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
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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:
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
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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.
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(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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
16
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XXXXXXX CORPORATION
By
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Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President-Administration
PEPSI-COLA GENERAL BOTTLERS, INC.
By
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President-Human Resources
EXECUTIVE
By
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Name:
17
