FORM OF EXECUTIVE AGREEMENT (TIER III)
THIS AMENDED AND RESTATED AGREEMENT, made this 24th day of
March, 1997, by and between THE XXXXXXX CORPORATION, a New York corporation
having a principal place of business in Greene, New York (hereinafter, together
with its successors and assigns, "Xxxxxxx") and ________________, an individual
having a principal place of residence in ___________, ____________ (hereinafter
"Executive").
W I T N E S S E T H :
WHEREAS, Xxxxxxx has a long-standing tradition of employment
at will; and WHEREAS, Executive has been a trusted and
valuable employee of Xxxxxxx for a period of time;
and
WHEREAS, the loss of Executive's services during a period in
which there was a change in control of Xxxxxxx would be harmful to Xxxxxxx; and
WHEREAS, the possibility of a change in control creates an
unsettling atmosphere and uncertainties for Executive; and
WHEREAS, Xxxxxxx and Executive wish to amend and restate the
Executive Agreement dated __________ __, 19__;
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements herein contained, and for other good and valuable
consideration receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. Effective Date. This Agreement shall become effective on
the date on which a "Change of Control" (as such term is defined in paragraph 2
hereof) occurs.
2. Change of Control. The term "Change of Control" shall mean
a change of control of Xxxxxxx of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 as in effect on the date of this Agreement or,
if Item 6(e) is no longer in effect, any regulations issued by the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934 which
serves similar purposes; provided that, without limitation, such a Change of
Control shall be deemed to have occurred if and when:
A. any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) is or becomes
a beneficial owner, directly or indirectly, of securities of
Xxxxxxx representing 25% or more of the combined voting power
of Raymond's then outstanding securities; or
B. individuals who on the date this Agreement is amended and
restated constituted the Board of Directors (together with any
new directors whose election by such Board of Directors, or
whose nomination for election by the shareholders of Xxxxxxx,
was approved by a vote of a majority of the directors of
Xxxxxxx then still in office who were either directors on the
date this Agreement is amended or restated or whose election
or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of
Directors then in office; or
C. the stockholders of Xxxxxxx approve any transaction or
series of transactions under which Xxxxxxx is merged or
consolidated with any other company, other than a merger or
consolidation which would result in the voting securities of
Xxxxxxx outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more
than 75% of the combined voting power of the voting securities
of Xxxxxxx or such surviving entity outstanding immediately
after such merger or consolidation; or
D. the stockholders of Xxxxxxx approve a plan of complete
liquidation of Xxxxxxx or an agreement for the sale or
disposition by Xxxxxxx of all or substantially all of
Raymond's assets.
3. Employment. Xxxxxxx hereby agrees to continue the Executive
in its employ, and the
Executive hereby agrees to remain in the employ of Xxxxxxx,
for the period commencing on the effective date of this Agreement and ending on
the third anniversary of such date (the "Employment Period"). During such
Employment Period, the Executive shall exercise such authority and perform such
executive duties as are commensurate with the authority being exercised and the
duties being performed by the Executive immediately prior to the effective date
of this Agreement. Such services shall be performed at the location where the
Executive was the employee immediately prior to the effective date of this
Agreement or at such other location as Xxxxxxx may reasonably require; provided,
however, the Executive shall not be required to accept a location which is
unreasonable in light of the Executive's personal circumstances. The Executive
agrees that during the period of employment he shall devote his full business
time exclusively to his executive duties as described herein and shall perform
such duties faithfully and efficiently.
4. Compensation. During the Employment Period, the Executive
shall be entitled to the following compensation and benefits:
A. An annual salary which is not less than the Executive's
annual salary immediately prior to the effective date of this
Agreement, with the opportunity for increases, from time to
time thereafter, which are in accordance with Raymond's
regular practices. Such salary shall be paid in substantially
equal monthly installments commencing with the first day of
the month following the month in which the Change in Control
occurs. In the event the Executive dies or is terminated for
"Cause" (as such term is hereinafter defined) at any time
during the three year period during which payments are made
pursuant to this paragraph, no further payments shall be paid
or payable pursuant to this paragraph 4A.
B. Executive shall be entitled to participate in accordance
and with the terms of any bonus, stock option, restricted
stock, pension and/or profit sharing or other incentive
compensation plans in which he was a participant immediately
prior to the effective date of this Agreement, or any
successor plans that provide Executive with compensation and
benefits no less than such prior plans.
C. Executive shall be entitled to receive all employee
benefits including, but not limited to, medical, life, and
split-dollar life insurance benefits, to which he was entitled
immediately prior to the effective date of this Agreement.
5. Termination. The term "Termination" shall mean termination
by Xxxxxxx of the employment of the Executive during the Employment Period, (for
any reason other than death, "Disability" or "Cause" as such terms are defined
below), or the resignation of the Executive upon the occurrence of any of the
following events:
A. a significant change in the nature or scope of the
Executive's authorities or duties from those described in
paragraph 3, a reduction in total compensation and/or benefits
from those provided in paragraph 4, or the breach by Xxxxxxx
of any other provision of this Agreement; or
B. a reasonable determination by the Executive that, as the
result of a Change of Control of Xxxxxxx and a change in
circumstances thereafter significantly affecting his position,
he is unable to exercise the authorities, powers, functions or
duties attached to his position and contemplated by paragraph
3 of this Agreement.
C. a failure by Xxxxxxx to assign this Agreement to its
successors and assigns.
For purposes of this Agreement, the term "Disability" shall
mean permanent disability (as determined under Raymond's disability insurance
plan). For purposes of this Agreement, the term "Cause" shall mean gross
misconduct or willful and material breach of this Agreement by the Executive.
6. Termination Payments. In the event the Executive's
employment is terminated and subject to the provisions of Section 5 of this
Agreement, Xxxxxxx shall pay to and provide the Executive with the following:
A. A lump sum amount, payable within 60 days following the
Executive's Termination, equal to the sum of (i) all salary
payments that would have been payable to the Executive during
the remainder of the Employment Period had no Termination
occurred (at the same rate as payable immediately prior to the
date of Termination), plus (ii) the estimated amount of any
bonuses to which the Executive would have been entitled had he
remained in the employ of Xxxxxxx (provided that in no event
will the amount of any bonus for any particular year be less
than the amount of the bonus paid to the Executive for the
year immediately preceding the year of Termination); and
B. During the remainder of the Employment Period, the
Executive shall continue to be treated as an employee under
the provisions of any stock option, restricted stock, pension
and/or profit sharing plans or other incentive compensation
arrangements described in paragraph 4B. In addition the
Executive shall continue to be entitled to all benefits and
service credit for benefits under medical, life insurance,
split dollar life insurance and other employee benefit plans,
programs and arrangements of Xxxxxxx described in paragraph 4C
as if he were still employed during such period under this
Agreement; and
C. If, despite the provisions of paragraph 6B above, benefits
or service credits under any employee benefit plan shall not
be payable or provided under any such plan to the Executive,
or his dependents, beneficiaries and estate, because be is no
longer an employee of Xxxxxxx, Xxxxxxx itself shall, to the
extent necessary, pay or provide for payment of such benefits
or service credit for such benefits to the Executive, his
dependents, beneficiaries and estate.
D. If, despite the provisions of paragraph 6B above, benefits
or the right to accrue further benefits under any stock
option, restricted stock, pension and/or profit sharing plan
or other incentive compensation arrangement described in
paragraph 4B shall not be provided under any such arrangement
to the Executive, or his dependents, beneficiaries and estate,
because he is no longer an employee of Xxxxxxx, Xxxxxxx shall,
to the extent necessary, pay or provide for payment of such
benefits to the Executive, his dependents, beneficiaries and
estate.
It is the intention of this paragraph 6 that the total
compensation and benefits paid to the Executive pursuant to this Agreement equal
those amounts he would have received had be remained in the employ of Xxxxxxx
until the expiration of the Employment Period or, if earlier, his death.
7. Code Section 280G Limitation. Notwithstanding anything to
the contrary in this Agreement, any amounts payable under this Agreement shall
be reduced to the extent necessary to avoid Executive being deemed to have
received an "excess parachute payment" as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"); provided, however, that
such a reduction shall occur only to the extent that the amounts received by the
Executive on an after-tax basis with such a reduction would exceed the amounts
received by the Executive on an after-tax basis without such a reduction.
8. Non-Competition and Confidentiality. The Executive agrees
that:
A. There shall be no obligation on the part of Xxxxxxx to
provide any further payments or benefits (other than benefits
or payments already earned or accrued) described in paragraph
6, if, during the Employment Period, the Executive shall be
employed by or otherwise engage or be interested in any
business which is competitive with any business of Xxxxxxx or
any of its subsidiaries in which the Executive was engaged
during his employment prior to a termination and if, but only
if, such employment or activity is likely to cause, or causes,
serious damage to Xxxxxxx or any of its subsidiaries;
provided, however, nothing herein shall prohibit Executive
from owning less than 3% of the issued and outstanding stock
of a company traded on a national securities exchange; and
B. During and after the Employment Period, he will not divulge
or appropriate to his own use or the use of others any secret
or confidential information or knowledge pertaining to the
business of Xxxxxxx, or any of its subsidiaries, obtained
during his employment by Xxxxxxx or any of its subsidiaries.
9. No Mitigation. Executive shall not be required to seek
employment with any subsequent employer following his Termination of employment
from Xxxxxxx, and no amounts payable hereunder shall be reduced by reason of any
compensation or benefits received by Executive from a subsequent employer.
10. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof, shall be settled by
arbitration in the City of Syracuse in accordance with the laws of the State of
New York by three arbitrators, one of whom shall be appointed by Xxxxxxx, one by
the Executive and the third of whom shall be appointed by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment of a
third arbitrator, then the third arbitrator shall be appointed by a Justice of
the Supreme Court for the County of Onondaga, State of New York. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators which shall be
as provided in this paragraph 10. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. In the
event that it shall be necessary or desirable for the Executive to retain legal
counsel and/or incur other costs and expenses in connection with the enforcement
of any and all of his rights under this Agreement, Xxxxxxx shall pay (or the
Executive shall be entitled to recover from Xxxxxxx, as the case may be) his
reasonable attorneys' fees and costs and expenses in connection with the
enforcement of his said rights (including the enforcement of any arbitration
award in court), regardless of the final outcome, unless the arbitrator shall
expressly determine that such action was brought by Executive in bad faith.
11. Notices. Any notices, requests, demands and other
communications provided for by this Agreement shall be sufficient if in writing
and if sent by registered or certified mail to the Executive at the last address
he has filed in writing with Xxxxxxx, or, in the case of Xxxxxxx, at its
principal executive offices.
12. Non-Alienation. The Executive shall not have any right to
pledge, hypothecate, anticipate or in any way create a lien upon any amounts
provided under this Agreement. No benefits payable hereunder shall be assignable
in anticipation of payment either by voluntary or involuntary acts, or by
operation or law.
13. Governing Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of New York, without
reference to principles of conflict of laws.
14. Amendment. This Agreement may be amended or cancelled by
mutual agreement of the parties in writing without the consent of any other
person and, so long as the Executive lives, no person, other than the parties
hereto, shall have any rights under or interests in this Agreement or the
subject matter hereof.
15. Successors to the Company. Except as otherwise provided
herein, this Agreement shall be binding upon or inure to the benefit of Xxxxxxx
and any successor of Xxxxxxx.
16. Severability. In the event that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect.
IN WITNESS WHEREOF, the Executive has hereunto set his hand,
and pursuant to the authorization from its Board of Directors, Xxxxxxx has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
THE XXXXXXX CORPORATION
By:
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Xxxx X. Xxxxxxxxx
Chief Executive Officer
and Chairman of the Board
of Directors
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Executive
