EXHIBIT 10.14
APPENDIX A
CHANGE IN CONTROL SEVERANCE AGREEMENT
Xx. Xxxx Xxxxxx Xxxxxxx
0000 Xxxxx Xxxxx
Xxxx Xxxxx
Xxxxxxxx, 00000
March 11, 2004
Dear Xxxx:
Xxxxxxx International, Inc. (the "Company") recognizes that, as is the
case for most companies, the possibility of a change in control exists. The
Company wishes to ensure that its senior executives are not distracted from
performing their duties in the event of a proposed or actual transaction
involving a change in control. Accordingly, the Company has determined that as
an additional inducement for you (the "Executive") to continue to remain in the
employ of the Company and to assure itself of both present and future continuity
of management, the Company agrees to provide the Executive with severance
benefits under the following circumstances pursuant to the following terms and
conditions (the "Agreement"):
1. Defined Terms. In addition to terms defined elsewhere
herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "Base Pay" means the Executive's annual base
salary rate as in effect from time to time.
(b) "Board" means the Board of Directors of the
Company.
(c) "Cause" means that, prior to any termination
pursuant to Section 3(b), the Executive shall have:
(i) engaged in misconduct which is
materially injurious to the Company, monetarily or
otherwise;
(ii) committed an act of fraud, embezzlement
or theft in connection with his duties or in the
course of his employment with the Company or any
subsidiary;
(iii) intentionally damaged property of the
Company or any subsidiary;
(iv) committed wrongful disclosure of secret
processes or confidential information of the Company
or any Subsidiary; or
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(v) engaged in any Competitive Activity; and
any such act shall have been demonstrably and
materially harmful to the Company. Notwithstanding
the foregoing, the Executive shall not be deemed to
have been terminated for "Cause" hereunder unless and
until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the
Board then in office (excluding the Executive if he
is a Director) at a meeting of the Board called and
held for such purpose, after reasonable notice to the
Executive and an opportunity for the Executive,
together with the Executive's counsel (if the
Executive chooses to have counsel present at such
meeting), to be heard before the Board, finding that,
in the good faith opinion of the Board, the Executive
had committed an act constituting "Cause" as herein
defined and specifying the particulars thereof in
detail. Nothing herein will limit the right of the
Executive or his beneficiaries to contest the
validity or propriety of any such determination;
(d) "Change in Control" means the occurrence during
the Term of any of the following events:
(i) the acquisition by any individual,
entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of
50% or more of the then-outstanding Voting Stock;
provided, however, that the following acquisitions
shall not constitute a Change in Control: (A) any
acquisition directly from the Company, (B) any
acquisition by the Company, (C) any acquisition by
any employee benefit plan (or related trust)
sponsored or maintained by the Company or any
Subsidiary or (D) any acquisition by any Person
pursuant to a transaction that complies with clauses
(A), (B) and (C) of subsection (iii) of this Section
1(d);
(ii) individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease
for any reason (other than death or disability) to
constitute at least a majority of the Board;
provided, however, that any individual becoming a
director subsequent to the date hereof whose
election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a
majority of the directors then comprising the
Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in
which such person is named as a nominee for director,
without objection to such nomination) shall be
considered as though such individual were a member of
the Incumbent Board, but excluding for this purpose,
any such individual whose initial assumption of
office occurs as a result of an actual or threatened
election contest (within the meaning of Rule 14a-11
of the Exchange Act) with respect to the election or
removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf
of a Person other than the Board;
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(iii) consummation of a reorganization,
merger or consolidation or sale or other disposition
of all or substantially all of the assets of the
Company (a "Business Combination"), unless, in each
case, immediately following such Business
Combination, (A) all or substantially all of the
individuals and entities who were the beneficial
owners of Voting Stock of the Company immediately
prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then
outstanding shares of common stock and the combined
voting power of the then outstanding voting
securities entitled to vote generally in the election
of directors of the entity resulting from such
Business Combination (including, without limitation,
an entity which as a result of such transaction owns
the Company or all or substantially all of the
Company's assets either directly or through one or
more subsidiaries) in substantially the same
proportions relative to each other as their
ownership, immediately prior to such Business
Combination, of the Voting Stock of the Company, (B)
no Person (excluding any entity resulting from such
Business Combination or any employee benefit plan (or
related trust) sponsored or maintained by the
Company, any Subsidiary or such entity resulting from
such Business Combination) beneficially owns,
directly or indirectly, 15% or more of the then
outstanding shares of common stock of the entity
resulting from such Business Combination or the
combined voting power of the then outstanding voting
securities of such entity except to the extent such
ownership existed prior to the Business Combination
and (C) at least a majority of the members of the
board of directors of the entity resulting from such
Business Combination were members of the Incumbent
Board at the time of the execution of the initial
agreement or of the action of the Board providing for
such Business Combination; or
(iv) approval by the stockholders of the
Company of a complete liquidation or dissolution of
the Company.
(e) "Competitive Activity" means the Executive's
participation, without the written consent of the Board, as an
employee, officer, consultant or director of any business enterprise if
such enterprise engages in substantial and direct competition with the
Company and such enterprise's sales of any product or service
competitive with any product or service of the Company amounted to 10%
of such enterprise's net sales for its most recently completed fiscal
year and if the Company's net sales of said product or service amounted
to 10% of the Company's net sales for its most recently completed
fiscal year. "Competitive Activity" will not include (i) the mere
ownership of securities in any such enterprise and the exercise of
rights appurtenant thereto or (ii) participation in the management of
any such enterprise other than in connection with the competitive
operations of such enterprise.
(f) "Employee Benefits" means the perquisites,
benefits and service credit for benefits as provided under any and all
employee retirement income and welfare benefit policies, plans,
programs or arrangements in which Executive is entitled to
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participate, including, without limitation, any stock option,
performance share, performance unit, stock purchase, stock
appreciation, savings, pension, supplemental executive retirement, or
other retirement income or welfare benefit, compensation, incentive
compensation, group or other life, health, medical/hospital or other
insurance (whether funded by actual insurance or self-insured by the
Company or a Subsidiary), disability, salary continuation, expense
reimbursement and other employee benefit policies, plans, programs or
arrangements.
(g) "Exchange Act" means the Securities Exchange Act
of 1934.
(h) "Incentive Pay" means an annual bonus, incentive
or other payment of compensation, in addition to Base Pay, made or to
be made in regard to services rendered in any year or other period
pursuant to any bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, policy, plan, program or
arrangement (whether or not funded) of the Company or a Subsidiary, or
any successor thereto.
(i) "Retirement Plans" means the retirement income,
supplemental executive retirement, excess benefits and retiree medical,
life and similar benefit plans, programs or arrangements of the Company
in which the Executive is entitled to participate.
(j) "Severance Period" means the period of time
commencing on the date of the first occurrence of a Change in Control
and continuing until the earlier of (i) the second anniversary of the
occurrence of the Change in Control, or (ii) the Executive's death.
(k) "Subsidiary" means an entity in which the Company
directly or indirectly beneficially owns 50% or more of the outstanding
Voting Stock.
(l) "Term" means the period commencing as of the date
hereof and expiring as of the later of (i) the close of business on
August 31, 2004, or (ii) the expiration of the Severance Period;
provided, however, that (A) commencing on September 1, 2004 and each
September 1 thereafter, the term of this Agreement will automatically
be extended for an additional year unless, not later than June 30 of
the immediately preceding year, the Company or the Executive shall have
given notice that it or the Executive, as the case may be, does not
wish to have the Term extended and (B) subject to the last sentence of
Section 9, if, prior to a Change in Control, the Executive ceases for
any reason to be an employee of the Company and any Subsidiary,
thereupon without further action the Term shall be deemed to have
expired and this Agreement will immediately terminate and be of no
further effect. For purposes of this Section 1(l), the Executive shall
not be deemed to have ceased to be an employee of the Company and any
Subsidiary by reason of the transfer of Executive's employment between
the Company and any Subsidiary, or among any Subsidiaries.
(m) "Termination Date" means the date on which the
Executive's employment is terminated (the effective date of which shall
be the date of termination, or
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such other date that may be specified by the Executive if the
termination is pursuant to Section 3(b)).
(n) "Voting Stock" means securities entitled to vote
generally in the election of directors.
2. Operation of Agreement. This Agreement will be effective
and binding immediately upon its execution, but, anything in this Agreement to
the contrary notwithstanding, except as provided in Sections 8 and 9, this
Agreement will not be operative unless and until a Change in Control occurs.
Upon the occurrence of a Change in Control at any time during the Term, without
further action, this Agreement shall become immediately operative.
3. Termination Following a Change in Control.
(a) In the event of the occurrence of a Change in
Control, the Executive's employment may be terminated by the Company or
a Subsidiary during the Severance Period and the Executive shall be
entitled to the benefits provided by Section 4 unless such termination
is the result of the occurrence of one or more of the following events:
(i) The Executive's death;
(ii) If the Executive becomes permanently
disabled within the meaning of, and begins actually to receive
disability benefits pursuant to, the long-term disability plan
in effect for, or applicable to, Executive immediately prior
to the Change in Control; or
(iii) Cause.
If, during the Severance Period, the Executive's employment is
terminated by the Company or any Subsidiary other than pursuant to Section
3(a)(i), 3(a)(ii) or 3(a)(iii), the Executive will be entitled to the benefits
provided by Section 4 hereof.
(b) In the event of the occurrence of a Change in
Control, the Executive may terminate employment with the Company and
any Subsidiary during the Severance Period with the right to severance
compensation as provided in Section 4 upon the occurrence of one or
more of the following events (regardless of whether any other reason,
other than Cause as hereinabove provided, for such termination exists
or has occurred, including, without limitation, other employment):
(i) Failure to elect or reelect or otherwise
to maintain the Executive in the office or the position, or a
substantially equivalent office or position, of or with the
Company and/or a Subsidiary (or any successor thereto by
operation of law or otherwise), as the case may be, which the
Executive held immediately prior to a Change in Control, or
the removal of the Executive as a director of the Company
and/or a Subsidiary (or any successor thereto) if the
Executive shall have been a director of the Company and/or a
Subsidiary immediately prior to the Change in Control;
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(ii) (A) A significant adverse change in the
nature or scope of the authorities, powers, functions,
responsibilities or duties attached to the position with the
Company and any Subsidiary which the Executive held
immediately prior to the Change in Control, (B) a reduction in
the aggregate of the Executive's Base Pay received from the
Company and any Subsidiary or the Executive's Incentive Pay
opportunity from the Company or its Subsidiaries, or (C) the
termination or denial of the Executive's rights to Employee
Benefits or a reduction in the scope or value thereof to a
level that is substantially lower in the aggregate from the
level in effect at the time of the Change in Control, any of
which is not remedied by the Company within 10 calendar days
after receipt by the Company of written notice from the
Executive of such change, reduction, denial or termination, as
the case may be;
(iii) The liquidation, dissolution, merger,
consolidation or reorganization of the Company or transfer of
all or substantially all of its business and/or assets, unless
the successor or successors (by liquidation, merger,
consolidation, reorganization, transfer or otherwise) to which
all or substantially all of its business and/or assets have
been transferred (by operation of law or otherwise) assumed
all duties and obligations of the Company under this Agreement
pursuant to Section 12(a);
(iv) The Company relocates its principal
executive offices (if such offices are the principal location
of Executive's work), or requires the Executive to have his
principal location of work changed, to any location that, in
either case, is in excess of 50 miles from the location
thereof immediately prior to the Change in Control, or
requires the Executive to travel away from his office in the
course of discharging his responsibilities or duties hereunder
at least 20% more (in terms of aggregate days in any calendar
year or in any calendar quarter when annualized for purposes
of comparison to any prior year) than was required of
Executive in any of the three full years immediately prior to
the Change in Control without, in either case, his prior
written consent; or
(v) Without limiting the generality or
effect of the foregoing, any material breach of this Agreement
by the Company or any successor thereto which is not remedied
by the Company within 10 calendar days after receipt by the
Company of written notice from the Executive of such breach.
(c) Except as otherwise provided herein, a
termination by the Company pursuant to Section 3(a) or by the Executive
pursuant to Section 3(b) will not affect any rights that the Executive
may have pursuant to any agreement, policy, plan, program or
arrangement of the Company or Subsidiary providing Employee Benefits,
which rights shall be governed by the terms thereof, except for any
rights to severance compensation to which Executive may be entitled
upon termination of employment pursuant to Paragraph 6(a)(iii) of the
Executive's employment agreement, dated August 20, 2004, which rights
shall, during the Severance Period, be superseded by this Agreement.
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4. Severance Compensation.
(a) If, following the occurrence of a Change in
Control, the Company or Subsidiary terminates the Executive's
employment during the Severance Period other than pursuant to Section
3(a)(i), 3(a)(ii) or 3(a)(iii), or if the Executive terminates his
employment pursuant to Section 3(b), the Company shall pay to the
Executive the amounts described in Annex A within five business days
after the Termination Date and shall provide to the Executive the
benefits described on Annex A for the periods described therein.
(b) Without limiting the rights of the Executive at
law or in equity, in the event it is determined that the Company fails
to make any payment or provide any benefit required to be made or
provided hereunder on a timely basis, the Company shall pay interest on
the amount or value thereof at an annualized rate of interest equal to
the so-called composite "prime rate" as quoted from time to time during
the relevant period in The Wall Street Journal, plus 4%. Any change in
such prime rate shall be effective on and as of the date of such
change.
(c) Notwithstanding any provision of this Agreement
to the contrary, the parties' respective rights and obligations under
this Section 4 and under Sections 5, 7, 8 and the last sentence of
Section 9 will survive any termination or expiration of this Agreement
or the termination of the Executive's employment following a Change in
Control for any reason whatsoever.
(d) Notwithstanding any provision to the contrary in
any applicable plan, program or agreement, upon the occurrence of a
Change in Control, all equity incentive awards held by the Executive
shall become fully vested and all stock options held by the Executive
shall become fully exercisable.
5. Limitation on Payments and Benefits. Notwithstanding any
provision of this Agreement to the contrary, if any amount or benefit to be paid
or provided under this Agreement would be an "Excess Parachute Payment," within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), or any successor provision thereto, but for the application of
this sentence, then the payments and benefits to be paid or provided under this
Agreement shall be reduced to the minimum extent necessary (but in no event to
less than zero) so that no portion of any such payment or benefit, as so
reduced, constitutes an Excess Parachute Payment; provided, however, that the
foregoing reduction shall be made only if and to the extent that such reduction
would result in an increase in the aggregate payment and benefits to be
provided, determined on an after-tax basis (taking into account the excise tax
imposed pursuant to Section 4999 of the Code, or any successor provision
thereto, any tax imposed by any comparable provision of state law, and any
applicable federal, state and local income taxes). The determination of whether
any reduction in such payments or benefits to be provided under this Agreement
or otherwise is required pursuant to the preceding sentence shall be made at the
expense of the Company, if requested by the Executive or the Company, by the
Company's independent accountants. The fact that the Executive's right to
payments or benefits may be reduced by reason of the limitations contained in
this Section 5 shall not of itself limit or otherwise affect any other rights of
the Executive other than pursuant to this Agreement. In the
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event that any payment or benefit intended to be provided under this Agreement
or otherwise is required to be reduced pursuant to this Section 5, the Executive
shall be entitled to designate the payments and/or benefits to be so reduced in
order to give effect to this Section 5. The Company shall provide the Executive
with all information reasonably requested by the Executive to permit the
Executive to make such designation. In the event that the Executive fails to
make such designation within 10 business days of the Termination Date, the
Company may effect such reduction in any manner it deems appropriate.
6. No Mitigation Obligation. The Company hereby acknowledges
that it will be difficult and may be impossible for the Executive to find
reasonably comparable employment following the Termination Date. Accordingly,
the payment of the severance compensation by the Company to the Executive in
accordance with the terms of this Agreement is hereby acknowledged by the
Company to be reasonable, and the Executive will not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, nor will any profits, income, earnings or other benefits from any
source whatsoever create any mitigation, offset, reduction or any other
obligation on the part of the Executive hereunder or otherwise, except as
expressly provided in the last sentence of Section 2 set forth on Annex A.
7. Legal Fees and Expenses. It is the intent of the Company
that the Executive not be required to incur legal fees and the related expenses
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement by litigation or otherwise because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Executive hereunder. Accordingly, if the Executive reasonably believes that
the Company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to deny, or to
recover from, the Executive the benefits provided or intended to be provided to
the Executive hereunder, subject to the other provisions of this Section 7, the
Company irrevocably authorizes the Executive from time to time to retain counsel
of Executive's choice, at the expense of the Company to the extent and as
hereafter provided, to advise and represent the Executive in connection with any
such interpretation, enforcement or defense, including, without limitation, the
initiation or defense of any litigation or other legal action, whether by or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any existing
or prior attorney-client relationship between the Company and such counsel, the
Company irrevocably consents to the Executive's entering into an attorney-client
relationship with such counsel, and in that connection the Company and the
Executive agree that a confidential relationship shall exist between the
Executive and such counsel. The Company will pay and be solely responsible for
any and all attorneys' and related fees and expenses incurred by the Executive
in connection with any of the foregoing, except to the extent that the Executive
fails to prevail on a material claim in any such proceeding described in this
Section 7.
8. Confidentiality. The Executive acknowledges that in the
course of his employment by the Company, he will or may have access to and
become informed of confidential or proprietary information (as defined in this
Section 8) of the Company. The Executive hereby covenants and agrees that he
will not, without the prior written consent of the
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Company, during the Term or thereafter disclose to any person not employed by
the Company, or use in connection with engaging in competition with the Company,
any confidential or proprietary information of the Company. For purposes of this
Agreement, the term "confidential or proprietary information" will include all
information of any nature and in any form that is owned by the Company and that
is not publicly available (other than by Executive's breach of this Section 8)
or generally known to persons engaged in businesses similar or related to those
of the Company. Confidential or proprietary information will include, without
limitation, the Company's financial matters, customers, employees, industry
contracts, strategic business plans, product development (or other proprietary
product data), marketing plans, and all other secrets and all other information
of a confidential or proprietary nature. For purposes of the preceding two
sentences, the term "Company" will also include any Subsidiary (collectively,
the "Restricted Group"). The foregoing obligations imposed by this Section 8
will not apply (i) during the Term, in the course of the business of and for the
benefit of the Company, (ii) if such confidential or proprietary information
will have become, through no fault of the Executive, generally known to the
public or (iii) if the Executive is required by law to make disclosure (after
giving the Company notice and an opportunity to contest such requirement).
9. Employment Rights. Nothing expressed or implied in this
Agreement will create any right or duty on the part of the Company or the
Executive to have the Executive remain in the employment of the Company or any
Subsidiary prior to or following any Change in Control. Any termination of
employment of the Executive or the removal of the Executive from the office or
position in the Company or any Subsidiary that occurs (i) not more than 90 days
prior to the date on which a Change in Control occurs, and (ii) following the
commencement of any discussion with a third person that ultimately results in a
Change in Control, shall be deemed to be a termination or removal of the
Executive after a Change in Control for purposes of this Agreement.
10. Post-termination Assistance. Executive shall provide such
information and assistance to the Company as the Company may reasonably request,
upon reasonable notice, in connection with any litigation in which it or any of
its affiliates is or may become a party. The Company shall reimburse the
Executive for any expenses, including travel expenses, incurred by the Executive
in connection with providing such information and assistance.
11. Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes as
the Company is required to withhold pursuant to any applicable law, regulation
or ruling.
12. Successors and Binding Agreement.
(a) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization
or otherwise) to all or substantially all of the business or assets of
the Company, by agreement in form and substance reasonably satisfactory
to the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent the Company would
be required to perform if no such succession had taken place. This
Agreement will be binding upon and inure to the benefit of the Company
and any successor to the Company, including, without limitation, any
persons acquiring directly or indirectly all or
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substantially all of the business or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and such
successor shall thereafter be deemed the "Company" for the purposes of
this Agreement), but will not otherwise be assignable, transferable or
delegable by the Company.
(b) This Agreement will inure to the benefit of and
be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and
legatees.
(c) This Agreement is personal in nature and neither
of the parties hereto shall, without the consent of the other, assign,
transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 12(a) and 12(b).
Without limiting the generality or effect of the foregoing, the
Executive's right to receive payments hereunder will not be assignable,
transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Executive's will or
by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 12(c), the
Company shall have no liability to pay any amount so attempted to be
assigned, transferred or delegated.
13. Notices. For all purposes of this Agreement, all
communications, including, without limitation, notices, consents, requests or
approvals, required or permitted to be given hereunder will be in writing and
will be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed), or
five business days after having been mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or three business
days after having been sent by a nationally recognized overnight courier service
(such as Federal Express or UPS) addressed to the Company (to the attention of
the Secretary of the Company) at its principal executive office and to the
Executive at his principal residence, or to such other address as any party may
have furnished to the other in writing and in accordance herewith, except that
notices of changes of address shall be effective only upon receipt.
14. Governing Law. The validity, interpretation, construction
and performance of this Agreement will be governed by and construed in
accordance with the substantive laws of the State of Delaware, without giving
effect to the principles of conflict of laws of such State.
15. Validity. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other person or circumstances will not
be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal.
16. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to be
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performed by such other party will be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. References to Sections are to
references to Sections of this Agreement.
17. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
XXXXXXX INTERNATIONAL, INC.
____________________________________________
By: Xxxx Xxxxx Xxxxxx
Its: President and Chief Executive Officer
____________________________________________
By: Xxxx Xxxxxx Xxxxxxx
Date:_______________________________________
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ANNEX A
1. The Company shall pay to the Executive a lump sum payment
in an amount equal to two (2) times the sum of (A) Base Pay (at the highest rate
in effect for any period prior to the Termination Date), plus (B) Incentive Pay
(in an amount equal to not less than the higher of (x) the highest aggregate
Incentive Pay earned in any fiscal year after the Change in Control or in any of
the three fiscal years immediately preceding the year in which the Change in
Control occurred or (y) the plan target for which the year in which the Change
in Control occurred).
2. The Company shall, for a period of twenty four (24) months
following the Termination Date (the "Continuation Period"), arrange to provide
the Executive with Employee Benefits that are welfare benefits (but not stock
option, stock purchase, stock appreciation or similar compensatory benefits)
substantially similar to those that the Executive was receiving or entitled to
receive immediately prior to the Termination Date (or, if greater, immediately
prior to the reduction, termination or denial described in Section 3(b)(ii)),
except that the level of any such Employee Benefits to be provided to the
Executive may be reduced in the event of a corresponding reduction generally
applicable to all recipients of or participants in such Employee Benefits, which
Continuation Period will be considered service with the Company for the purpose
of determining service credits and benefits due and payable to the Executive
under the Company's retirement income, supplemental executive retirement and
other benefit plans of the Company applicable to the Executive, his dependents
or his beneficiaries immediately prior to the Termination Date. Without
otherwise limiting the purpose or effect of Section 5, Employee Benefits
otherwise receivable by the Executive pursuant to this Section 2 will be reduced
to the extent comparable welfare benefits are actually received by the Executive
from another employer during the Continuation Period following the Executive's
Termination Date, and any such benefits actually received by the Executive shall
be reported by the Executive to the Company.
3. In addition to the retirement income, supplemental
executive retirement, and other benefits to which Executive is entitled under
the Retirement Plans, a lump sum payment in an amount equal to the actuarial
equivalent of the excess of (x) the retirement pension and the medical, life and
other benefits that would be payable to the Executive under the Retirement Plans
if Executive continued to be employed through the Continuation Period given the
Executive's Base Pay (as determined in Section 1) (without regard to any
amendment to the Retirement Plans made subsequent to a Change in Control which
adversely affects in any manner the computation of retirement or welfare
benefits thereunder), over (y) the retirement pension and the medical, life and
other benefits that the Executive is entitled to receive (either immediately or
on a deferred basis) under the Retirement Plans. For purposes of this Section,
"actuarial equivalent" shall be determined using the actuarial assumptions
mandated under Section 417(e)(3) of the Code in effect for the month second
preceding the date of payment and the Continuation Period will be considered
service with the Company for the purpose of determining service credits and
benefits due and payable to the Executive under the Company's retirement pension
and medical, life and other benefit plans of the Company
applicable to the Executive, his dependents or his
beneficiaries immediately prior to the Termination Date.
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4. Reasonable outplacement services by a firm selected by the
Executive, at the expense of the Company, in an amount up to $25,000.
5. If the Termination Date occurs on or prior to the first
anniversary of the date hereof, the Company shall reimburse the Executive for
reasonable and actual relocation expenses to Canada (or a destination of the
Executive's choice of equal or lesser cost), subject to the Company's relocation
policy and guidelines as in effect from time to time.
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