Exhibit 10.5
OFFICER SPECIAL SEVERANCE AGREEMENT
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This Officer Special Severance Agreement (this "Agreement"), made
effective on December 17, 2008 (the "Effective Date"), between Xxxxxx
Corporation, a Massachusetts corporation, (herein referred to as the "Company")
and Xxxxxxx X. Xxxxxx (the "Officer"). The Company and the Officer are
collectively referred to herein as the "Parties" and individually referred to as
a "Party."
WITNESSETH THAT
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WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
for the Company to agree to provide benefits under circumstances described below
to the Officer as one of the elected corporate officers who is responsible for
the policy-making functions of the Company and the overall viability of the
Company's business; and
WHEREAS, the Board recognizes that the possibility of a change in
ownership and control of the Company is unsettling to the Officer and wishes to
make arrangements at this time to ensure the Officer's continuing dedication to
his or her duties to the Company and its shareholders notwithstanding the
occurrence of any attempt by outside parties to gain control of the Company; and
WHEREAS, the Board believes it important, should the Company receive
proposals from such outside parties, to enable the Officer, without being
distracted by the uncertainties of the Officer's own employment situation, in
addition to the Officer's regular duties, to participate in the assessment of
such proposals and provision of advice to the Board as to the best interests of
the Company and its shareholders and to take such other action as the Board
determines to be appropriate; and
WHEREAS, the Board also wishes to demonstrate to the Officer that
the Company is concerned for the Officer's welfare and intends to ensure that he
or she as a loyal officer is treated fairly.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. Purpose. The Company considers a sound and vital management team to be
essential. Management personnel who become concerned about the
possibility that the Company may undergo a Change in Control (as
defined in Paragraph 2 below) may terminate employment or become
distracted. Accordingly, the Board has determined to extend this
Agreement to minimize the distraction the Officer may suffer from the
possibility of a Change in Control.
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2. Change in Control. The term "Change in Control" for purposes of this
Agreement shall mean the earliest to occur of the following events
during the Term (as defined in Paragraph 3(d) below):
(a) closing of the sale of all or substantially all of the assets
of the Company on a consolidated basis to an unrelated person
or entity,
(b) closing of the sale of all of the Company's common stock to an
unrelated person or entity,
(c) there is a consummation of any merger, reorganization,
consolidation or share exchange unless the persons who were
the beneficial owners of the outstanding shares of the common
stock of Company immediately before the consummation of such
transaction beneficially own more than 50% of the outstanding
shares of the common stock of the successor or survivor entity
in such transaction immediately following the consummation of
such transaction. For purposes of this Paragraph 2(c), the
percentage of the beneficially owned shares of the successor
or survivor entity described above shall be determined
exclusively by reference to the shares of the successor or
survivor entity which result from the beneficial ownership of
shares of common stock of the Company by the persons described
above immediately before the consummation of such transaction.
3. Term.
(a) The term of this Agreement shall be the period beginning on
the Effective Date and ending on January 1, 2012; provided,
however, that:
(i) the term of this Agreement shall be automatically
extended thereafter for successive three year periods
unless, at least ninety (90) days prior to January 1,
2011 or twelve months prior to the then current
succeeding three-year extended term of this
Agreement, either Party has notified the other Party
that the term hereunder shall expire at the end of
the then-current term; and
(ii) if a Change in Control occurs prior to the scheduled
expiration of the term of this Agreement as described
above, the term of this Agreement shall automatically
be extended until the second anniversary of such
Change in Control (the "Protection Period").
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(b) If no Change in Control occurs prior to expiration of the Term
or if the Officer Separates from Service (as defined in
Paragraph 4(a) below) before a Change in Control, this
Agreement shall automatically terminate without any further
action; provided, however, that Paragraph 13 (regarding
arbitration) shall continue to apply to the extent the Officer
disputes the termination of this Agreement.
(c) The obligations of the Company and the Officer under this
Agreement which by their nature may require either partial or
total performance after its expiration shall survive any such
expiration.
(d) The initial term of this Agreement, as it may be extended or
terminated under this Paragraph 3, is herein referred to as
the "Term."
4. Severance Benefits. If, during the Protection Period (as defined in
Paragraph 3(a)(ii) above), the Officer "Separates from Service" (as
defined below) due to termination of employment by the Company and its
subsidiaries without "Cause" (as defined in Paragraph 5(a)) or by the
Officer due to "Constructive Termination" (as defined in Paragraph
5(b)) (each, a "Qualifying Termination"), the Officer shall be entitled
to the severance benefits set forth in this Paragraph 4. The term
"Separation from Service" or "Separates from Service" for purposes of
this Agreement shall mean a "separation from service" within the
meaning of Section 409A of the Code. The Officer shall not be entitled
to severance benefits upon any other Separation from Service, including
due to the Officer's death or Disability (as defined in Paragraph
5(c)). The payments and benefits provided for under this Paragraph 4
shall be in lieu of (or offset by) any other severance benefits or
other benefits in exchange for a non-competition agreement to which the
Officer may have been entitled under any other plan, program or policy
of the Company (or subsidiary) or agreement covering the Officer.
Payment of the severance benefits set forth below shall be subject to
the Officer's timely execution of a release that is not revoked as
provided in Paragraph 6 below and the Officer entering into the
"Non-Compete Agreement" (as defined and provided in Paragraph 7 below).
(a) Salary and Bonus Amount. The Company will pay to the Officer
thirty days after a Qualifying Termination a lump sum cash
amount equal to the product obtained by multiplying (i) the
sum of (A) salary at the annualized rate which was being paid
by the Company and/or subsidiaries to the Officer immediately
prior to the time of such termination or, if greater, at the
time of the Change in Control plus (B) the annual target bonus
and/or any other annual cash bonus awards last determined for
the Officer or, if greater, most recently paid prior to the
Change in Control, by one and one-quarter (1.25).
(b) Pro-Rata Bonus. The Officer shall be entitled to receive a
lump sum cash amount equal to the Officer's target annual
bonus for the year in which Separation from Service occurs,
pro-rated based on the number of days the Officer was employed
during such year. The pro-rata bonus will be paid at the same
time as the Salary and Bonus Amount in Paragraph 4(a) above.
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(c) Welfare Benefits. The Officer shall be entitled for a period
of fifteen (15) consecutive months following the month in
which a Qualifying Termination occurs to receive medical,
dental and life insurance benefits that are similar in all
material respects as those benefits provided under the
Company's employee benefit plans, policies and programs to
senior executives of Company who have not terminated their
employment (collectively, such benefits are referred to
hereinafter as the "Welfare Benefits"), at no greater monthly
cost to the Officer than the cost paid by such senior
executives. If the Company cannot provide such benefits under
its employee benefit plans, policies and programs the Company
either shall provide such benefits to the Officer outside such
plans, policies and programs at no additional expense or tax
liability to the Officer or shall reimburse the Officer for
the Officer's cost to purchase such benefits and for any tax
liability for any such reimbursement. The continuation period
for medical and dental benefits Section 4980B of the Code
(COBRA) shall commence at the end the Officer's Severance
Period. Benefits otherwise receivable by the Officer pursuant
to this Paragraph 4(d) shall be reduced to the extent
comparable benefits are actually received by or made available
to the Officer (other than benefits available at the Officer's
sole expense pursuant to COBRA) during the fifteen (15) month
continuation period provided in this Paragraph 4(d) (and any
such benefits actually received or made available to the
Officer shall be reported to the Company by the Officer).
To the extent the continuation of the Welfare Benefits under
this Paragraph 4(d) is, or ever becomes, taxable to the
Officer and to the extent the Welfare Benefits continue beyond
the period in which the Officer would be entitled (or would,
but for this Agreement, be entitled) to continuation coverage
under a group health plan of the Company under COBRA if the
Officer elected such coverage and paid the applicable
premiums, the Company shall administer such continuation of
coverage consistent with the following additional requirements
as set forth in Treas. Reg. ss. 1.409A-3(i)(1)(iv):
(i) the Officer's eligibility for Welfare Benefits in one
year will not affect the Officer's eligibility for
Welfare Benefits in any other year (disregarding any
limit on the amount of Welfare Benefits that may be
reimbursed during such continuation period);
(ii) any reimbursement of eligible expenses will be made
on or before the last day of the year following the
year in which the expense was incurred; and
(iii) the Officer's right to Welfare Benefits is not
subject to liquidation or exchange for another
benefit.
(d) Company Car Amount. If the Officer, as of the Qualifying
Termination, either was receiving a monthly car allowance or
had a company-leased car, any such car allowance will be
discontinued as of the date of termination of employment and
any such company-leased car must be returned to the Company
within thirty (30) days after the date of termination of
employment. No cash payment shall be made due to termination
of the company car amount.
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(e) Outplacement Services. In the event of a Qualifying
Termination, the Company shall provide to the Officer
executive outplacement services provided on a one-to-one basis
by a senior counselor of a firm nationally recognized as a
reputable national provider of such services for up to six
months, plus evaluation testing, at a location mutually
agreeable to the Parties.
(f) Equity Awards. The vesting of the Officer's Equity Awards
shall be governed by this Section 4(g). The term "Equity
Award" shall mean stock options, stock appreciation rights,
restricted stock, restricted stock units, performance shares
or any other form of award that is measured with reference to
the Company's common stock.
(i) The vesting of the Officer's Equity Awards granted on
or after January 1, 2009 that vest solely on the
basis of continued employment with the Company or any
of its subsidiaries or affiliates shall be
accelerated solely by reason of a Change in Control
only if the surviving corporation or acquiring
corporation following a Change in Control refuses to
assume or continue the Officer's Equity Awards or to
substitute similar Equity Awards for those
outstanding immediately prior to the Change in
Control. If such Officer's Equity Awards are so
continued, assumed or substituted and at any time
after the Change in Control the Officer incurs a
Qualifying Termination, then the vesting and
exercisability of all such unvested Equity Awards
held by the Officer shall be accelerated in full and
any reacquisition rights held by the Company with
respect to an Equity Award shall lapse in full, in
each case, upon such termination.
(ii) The vesting of the Officer's Equity Awards that vest,
in whole or in part, based upon achieving Performance
Criteria shall be accelerated on a pro rata basis by
reason of a Change in Control. The pro rata vesting
amount shall be determined in good faith by the
Compensation and Organization Committee based upon
(A) the extent to which the Performance Criteria for
any such award has been achieved after evaluating
actual performance from the start of the performance
period until the date of the Change in Control and
equitably adjusting performance targets for the
shortened period during which the Performance
Criteria could be achieved, and (B) the number of
days the Officer was employed during the award's
performance period as of the date of the Change in
Control.
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(iii) For purposes of this Section 4(g), "Performance
Criteria" means any business criteria that apply to
the Officer, a business unit, division, subsidiary,
affiliate, the Company or any combination of the
foregoing.
(iv) Enforcement of the terms of this Paragraph 4(g) shall
survive termination of this Agreement.
Equity Awards granted before January 1, 2009 that vest solely
on the basis of continued employment with the Company or any
of its subsidiaries or affiliates shall be accelerated in full
by reason of a Change in Control, regardless of whether the
Executive becomes eligible for severance benefits under this
Section 4.
(g) Limitation on Amounts. Notwithstanding any provision of this
Agreement to the contrary, if it is determined that part or
all of the compensation and benefits payable to the Officer
(whether pursuant to the terms of this Agreement or otherwise)
before application of this Paragraph 4(h) would constitute
"parachute payments" under Section 280G of the Code, and the
payment thereof would cause the Officer to incur the 20%
excise tax under Section 4999 of the Code (or its successor),
the following provisions shall apply:
(i) The amounts otherwise payable to or for the benefit
of the Officer pursuant to this Agreement (or
otherwise) that, but for this Paragraph 4(h) would be
"parachute payments," (referred to below as the
"Total Payments") shall be reduced to an amount equal
to three times the "base amount" (as defined under
Section 280G) less $1,000 in a manner that maximizes
the net after-tax amount payable to the Officer, as
reasonably determined by the Consultant (as defined
below).
(ii) All determinations under this Paragraph 4(h) shall be
made by a nationally recognized accounting, executive
compensation or law firm appointed by the Company
(the "Consultant") that is acceptable to the Officer
on the basis of "substantial authority" (within the
meaning of Section 6662 of the Code). The
Consultant's fee shall be paid by the Company. The
Consultant shall provide a report to the Officer that
may be used by the Officer to file the Officer's
federal tax returns.
(iii) It is possible that payments will be made by the
Company which should not have been made (each, an
"Overpayment") due to the uncertain application of
Section 280G of the Code at the time of a
determination hereunder. In the event that there is a
final determination by the Internal Revenue Service,
or a final determination by a court of competent
jurisdiction, that an Overpayment has been made, any
such Overpayment shall be repaid by the Officer to
the Company together with interest at the prime rate
of interest in effect on the date of such
Overpayment; provided, however, that no amount shall
be payable by the Officer to the Company if and to
the extent such payment would not reduce the amount
which is subject to taxation under Section 4999 of
the Code.
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By accepting severance benefits under this Paragraph 4, the Officer waives the
Officer's right, if any, to have any payment made under this Paragraph 4 taken
into account to increase the benefits otherwise payable to, or on behalf of, the
Officer under any employee benefit plan, policy or program, whether qualified or
nonqualified, maintained by the Company (e.g., there will be no increase in the
Officer's qualified pension benefit or life insurance because of severance
benefits received hereunder).
5. Definitions of "Cause," "Constructive Termination," and "Disability".
(a) For purposes of this Agreement, "Cause" means (i) the
Officer's conviction of (or a plea of guilty or nolo
contendere to) a felony or any other crime involving moral
turpitude, dishonesty, fraud, theft or financial impropriety;
or (ii) a determination by a majority of the Board in good
faith that the Officer has (A) willfully and continuously
failed to perform substantially the Officer's duties (other
than any such failure resulting from the Officer's Disability
or incapacity due to bodily injury or physical or mental
illness), after a written demand for substantial performance
is delivered to the Officer by the Board that specifically
identifies the manner in which the Board believes that the
Officer has not substantially performed the Officer's duties,
(B) engaged in illegal conduct, an act of dishonesty or gross
misconduct, or (C) willfully violated a material requirement
of the Company's code of conduct or the Officer's fiduciary
duty to the Company, including the covenant not to compete
under Paragraph 7 below. No act or failure to act on the part
of the Officer shall be considered "willful" unless it is
done, or omitted to be done, by the Officer in bad faith and
without reasonable belief that the Officer's action or
omission was in, or not opposed to, the best interests of the
Company or its subsidiaries. In order to terminate the
Officer's employment for Cause, the Company shall be required
to provide the Officer a reasonable opportunity to be heard
(with counsel) before the Board, which shall include at least
ten (10) business days of advance written notice to the
Officer. Further, the Officer's attempt to secure employment
with another employer that does not breach the non-competition
covenants set froth in Paragraph 7 below shall not constitute
an event of "Cause".
(b) For purposes of this Agreement, "Constructive Termination"
means, without the express written consent of the Officer, the
occurrence of any of the following during the Protection
Period (as defined in Paragraph 3(a)(ii) above):
(i) a material reduction in the Officer's annual base
salary as in effect immediately prior to a Change in
Control or as the same may be increased from time to
time, and/or a material failure to provide the
Executive with an opportunity to earn annual
incentive compensation and long-term incentive
compensation at least as favorable as in effect
immediately prior to a Change of Control or as the
same may be increased from time to time,
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(ii) a material diminution in the Officer's authority,
duties, or responsibilities as in effect at the time
of the Change in Control;
(iii) a material diminution in the authority, duties, or
responsibilities of the supervisor to whom the
Officer is required to report (it being understood
that if the Officer reports to the Board, a
requirement that the Officer report to any individual
or body other than the Board will constitute
"Constructive Termination" hereunder);
(iv) a material diminution in the budget over which the
Officer retains authority;
(v) the Company's requiring the Officer to be based
anywhere outside a fifty mile radius of the Company's
offices at which the Officer is based as of
immediately prior to a Change of Control (or any
subsequent location at which the Officer has
previously consented to be based) except for required
travel on the Company's business to an extent that is
not substantially greater than the Officer's business
travel obligations as of immediately prior to a
Change in Control or, if more favorable, as of any
time thereafter; or
(vi) any other action or inaction that constitutes a
material breach by the Company or any of its
subsidiaries of the terms of this Agreement.
In no event shall the Officer be entitled to terminate
employment with the Company on account of "Constructive
Termination" unless the Officer provides notice of the
existence of the purported condition that constitutes
"Constructive Termination" within a period not to exceed
ninety (90) days of its initial existence, and the Company
fails to cure such condition (if curable) within thirty (30)
days after the receipt of such notice.
(c) For purposes of this Agreement, "Disability" means the
Officer's inability, due to physical or mental incapacity
resulting from injury, sickness or disease, for one hundred
and eighty (180) days in any twelve-month period to perform
his duties hereunder.
6. Release. The Officer agrees that the Company will have no obligations
to the Officer under Paragraph 4 above until the Officer executes a
release in substantially the form which is attached as Exhibit A to
this Agreement and, further, will have no further obligations to the
Officer under Paragraph 4 if the Officer revokes such release. The
Officer shall have 21 days after Separation from Service to consider
whether or not to sign the release. If the Officer fails to return an
executed release to the Company's Vice President of Human Resources
within such 21 day period, or the Officer subsequently revokes a timely
filed release, the Company shall have no obligation to pay any amounts
or benefits under Paragraph 4 of this Agreement.
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7. Non-Compete Agreement. By signing this Agreement, the Officer
specifically acknowledges that the Severance Benefits payable under
Paragraph 4 are expressly conditioned upon the Officer entering into
the Non-Compete Agreement in substantially the same form as attached as
Exhibit B to this Agreement ("Non-Compete Agreement"). The Officer
agrees that it is the intention of the parties that the Severance
Benefits provided to Officer under Paragraph 4 of this Agreement are
conditioned upon strict compliance with the Non-Compete Agreement by
the Officer. If the Officer breaches (or threatens to breach) any
obligations under the Non-Compete Agreement, then, in addition to any
other legal or equitable remedies that may be available to the Company,
its subsidiaries or affiliates, under the Non-Compete Agreement or
otherwise:
(a) the Officer shall forthwith repay to the Company a percentage
of the total lump sum amount paid by the Company to the
Officer under Paragraph 4(a), 4(b) and 4(c) equal to X/12,
where X equals 18 less the number of months from Separation
from Service to the date of the Officer's breach (or
threatened breach) of the Non-Compete Agreement;
(b) the Officer shall not be entitled to receive any further
Welfare Benefits at the Company's expense as provided for
Paragraph 4(d) or reimbursement or other payment of
outplacement assistance under Paragraph 4(f); and
(c) all unvested Equity Awards shall forthwith be cancelled and
terminated, notwithstanding the provisions of any agreements
to the contrary.
The Officer agrees that should all or any part or application of the
Non-Compete Agreement be held or found invalid or unenforceable for any
reason whatsoever by a court of competent jurisdiction in an action
between the Officer and the Company (and/or its subsidiaries), the
Company nevertheless shall be entitled to take the actions described in
Paragraph 7(a), (b) and (c) above, if the Officer breaches or threatens
to breach any of the obligations set forth in the Non-Compete
Agreement. The provisions of this Paragraph 7 shall survive termination
of this Agreement. The parties agrees that any prior written agreement,
arrangement or understanding between the Officer and the Company, its
subsidiaries or affiliates relating to the Officer's post-employment
obligations, including any covenant not to compete, shall not apply to
any employment termination on and after a Change in Control, and the
Company, its subsidiaries and affiliates shall have no payment
obligations under any such agreement, arrangement or understanding.
8. No Interference with Other Vested Benefits. Regardless of the
circumstances under which the Officer may terminate from employment,
the Officer shall have a right to any benefits under any employee
benefit plan, policy or program maintained by the Company which the
Officer had a right to receive under the terms of such employee benefit
plan, policy or program after a termination of the Officer's employment
without regard to this Agreement. The Company shall within thirty (30)
days of Separation from Service pay the Officer any earned but unpaid
base salary and bonus, shall promptly pay the Officer for any earned
but untaken vacation and shall promptly reimburse the Officer for any
incurred but unreimbursed expenses which are otherwise reimbursable
under the Company's expense reimbursement policy as in effect for
senior executives immediately before the Officer's employment
termination.
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9. Consolidation or Merger. If the Company is at any time before or after
a Change in Control merged or consolidated into or with any other
corporation, association, partnership or other entity (whether or not
the Company is the surviving entity), or if substantially all of the
assets thereof are transferred to another corporation, association,
partnership or other entity, the provisions of this Agreement will be
binding upon and inure to the benefit of the corporation, association,
partnership or other entity resulting from such merger or consolidation
or the acquirer of such assets (collectively, "acquiring entity")
unless the Officer voluntarily elects not to become an employee of the
acquiring entity as determined in good faith by the Officer.
Furthermore, in the event of any such consolidation or transfer of
substantially all of the assets of the Company, the Company shall enter
into an agreement with the acquiring entity that shall provide that
such acquiring entity shall assume this Agreement and all obligations
and liabilities under this Agreement; provided, that the Company's
failure to comply with this provision shall not adversely affect any
right of the Officer hereunder. This Paragraph 9 will apply in the
event of any subsequent merger or consolidation or transfer of assets.
In the event of any merger, consolidation or sale of assets described
above, nothing contained in this Agreement will detract from or
otherwise limit the Officer's right to or privilege of participation in
any restricted stock plan, bonus or incentive plan, stock option or
purchase plan, profit sharing, pension, group insurance,
hospitalization or other compensation or benefit plan or arrangement
which may be or become applicable to officers of the corporation
resulting from such merger or consolidation or the corporation
acquiring such assets of the Company.
In the event of any merger, consolidation or sale of assets described
above, references to the Company in this Agreement shall, unless the
context suggests otherwise, be deemed to include the entity resulting
from such merger or consolidation or the acquirer of such assets of the
Company.
10. No Mitigation. The Company agrees that the Officer is not required to
seek other employment after a Qualifying Termination or to attempt in
any way to reduce any amounts payable to the Officer by the Company
under Paragraph 4 of this Agreement. Further, except as expressly
provided in Paragraph 4(d), the amount of any payment or benefit
provided for in this Agreement shall not be reduced by any compensation
earned by the Officer as the result of employment by another employer,
by retirement benefits, by offset against any amount claimed to be owed
by the Officer to the Company, or otherwise.
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11. Payments. All payments provided for in this Agreement shall be paid in
cash in United States funds from the general funds of the Company and
its subsidiaries drawn on the United States location of a bank and paid
in bank or cashier's check. The Company shall not be required to
establish a special or separate fund or other segregation of assets to
ensure such payments.
12. Tax Withholding; Section 409A.
(a) All payments made by the Company to the Officer or the
Officer's dependents, beneficiaries or estate will be subject
to the withholding of such amounts relating to tax and/or
other payroll deductions as may be required by law.
(b) The parties intend that the benefits and payments provided
under this Agreement shall be exempt from, or comply with, the
requirements of Section 409A of the Code. Notwithstanding the
foregoing, the Company shall in no event be obligated to
indemnify the Officer for any taxes or interest that may be
assessed by the IRS pursuant to Section 409A of the Code.
13. Arbitration.
(a) The Parties shall submit any disputes arising under this
Agreement to an arbitration panel conducting a binding
arbitration in Xxxxxx, Connecticut or at such other location
as may be agreeable to the parties, in accordance with the
National Rules for the Resolution of Employment Disputes of
the American Arbitration Association in effect on the date of
such arbitration (the "Rules"), and judgment upon the award
rendered by the arbitrator or arbitrators may be entered in
any court having jurisdiction thereof; PROVIDED, HOWEVER, that
nothing herein shall impair the Company's right to seek
equitable relief for any breach or threatened breach under
Paragraph 7 of this Agreement. The award of the arbitrators
shall be final and shall be the sole and exclusive remedy
between the Parties regarding any claims, counterclaims,
issues or accountings presented to the arbitration panel.
(b) The Parties agree that the arbitration panel shall consist of
one (1) person mutually acceptable to the Company and the
Officer, PROVIDED that if the Parties cannot agree on an
arbitrator within thirty (30) days of filing a notice of
arbitration, the arbitrator shall be selected by the manager
of the principal office of the American Arbitration
Association in Hartford County in the State of Connecticut.
Any action to enforce or vacate the arbitrator's award shall
be governed by the federal Arbitration Act, if applicable, and
otherwise by applicable state law.
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(c) If either Party pursues any claim, dispute or controversy
against the other in a proceeding other than the arbitration
provided for herein, the responding party shall be entitled to
dismissal or injunctive relief regarding such action and
recovery of all costs, losses and attorney's fees related to
such action.
(d) All of Officer's reasonable costs and expenses incurred in
connection with such arbitration shall be paid in full by the
Company promptly on written demand from the Officer, including
the arbitrators' fees, administrative fees, travel expenses,
out-of-pocket expenses such as copying and telephone, court
costs, witness fees and attorneys' fees; provided, however,
the Company shall pay no more than $50,000 per year in
attorneys' fees unless a higher figure is awarded in the
arbitration, in which event the Company shall pay the figure
awarded in the arbitration.
(e) Reimbursement of reasonable costs and expenses under Paragraph
13(d) shall be administered consistent with the following
additional requirements as set forth in Treas. Reg. ss.
1.409A-3(i)(1)(iv): (1) the Officer's eligibility for benefits
in one year will not affect the Officer's eligibility for
benefits in any other year; (2) any reimbursement of eligible
expenses will be made on or before the last day of the year
following the year in which the expense was incurred; and (3)
the Officer's right to benefits is not subject to liquidation
or exchange for another benefit. Notwithstanding the
foregoing, reimbursement for benefits under this Paragraph 13
shall commence no earlier than six months and a day after the
Officer's Separation from Service.
(f) The Officer acknowledges and expressly agrees that this
arbitration provision constitutes a voluntary waiver of trial
by jury in any action or proceeding to which the Officer or
the Company may be parties arising out of or pertaining to
this Agreement.
14. Assignment; Payment on Death.
(a) The provisions of this Agreement shall be binding upon and
shall inure to the benefit of the Officer, the Officer's
executors, administrators, legal representatives and assigns
and the Company and its successors.
(b) In the event that the Officer becomes entitled to payments
under this Agreement and subsequently dies, all amounts
payable to the Officer hereunder and not yet paid to the
Officer at the time of the Officer's death shall be paid to
the Officer's beneficiary. No right or interest to or in any
payments shall be assignable by the Officer; provided,
however, that this provision shall not preclude the Officer
from designating one or more beneficiaries to receive any
amount that may be payable after the Officer's death and shall
not preclude the legal representatives of the Officer's estate
from assigning any right hereunder to the person or persons
entitled thereto under the Officer's will or, in the case of
intestacy, to the person or persons entitled thereto under the
laws of intestacy applicable to the Officer's estate. The term
"beneficiary" as used in this Agreement shall mean the
beneficiary or beneficiaries so designated by the Officer to
receive such amount or, if no such beneficiary is in existence
at the time of the Officer's death, the legal representative
of the Officer's estate.
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(c) No right, benefit or interest hereunder shall be subject to
anticipation, alienation, sale, assignment, encumbrance,
charge, pledge, hypothecation, or set-off in respect of any
claim, debt or obligation, or to execution, attachment, levy
or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action
specified in the immediately preceding sentence shall, to the
full extent permitted by law, be null, void and of no effect.
15. Amendments and Waivers. Except as otherwise specified in this
Agreement, this Agreement may be amended, and the observance of any
term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only
with the written consent of the Parties.
16. Integration. The terms of this Agreement shall supersede any prior
agreements, understandings, arrangements or representations, oral or
otherwise, expressed or implied, with respect to the subject matter
hereof which have been made by either Party. By signing this Agreement,
the Officer releases and discharges the Company from any and all
obligations and liabilities heretofore or now existing under or by
virtue of such prior agreements.
17. Notices. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (a) on the date of delivery if
delivered by hand, (b) on the date of transmission, if delivered by
confirmed facsimile, (c) on the first business day following the date
of deposit if delivered by guaranteed overnight delivery service, or
(d) on the fourth business day following the date delivered or mailed
by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Officer: at the address (or to the facsimile number)
shown on the records of the Company.
If to the Company:
Vice President of Human Resources
Xxxxxx Corporation
One Technology Drive
XX Xxx 000
Xxxxxx, XX 00000
Page 13 of 23
or to such other address as either Party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
18. Severability. Any provision of this Agreement held to be unenforceable
under applicable law will be enforced to the maximum extent possible,
and the balance of this Agreement will remain in full force and effect.
19. Headings of No Effect. The paragraph headings contained in this
Agreement are included solely for convenience or reference and shall
not in any way affect the meaning or interpretation of any of the
provisions of this Agreement.
20. Not an Employment Contract. This Agreement is not an employment
contract and shall not give the Officer the right to continue in
employment by Company or any of its subsidiaries for any period of time
or from time to time. This Agreement shall not adversely affect the
right of the Company or any of its subsidiaries to terminate the
Officer's employment with or without cause at any time.
21. Governing Law. This Agreement and its validity, interpretation,
performance and enforcement shall be governed by the laws of the
Commonwealth of Massachusetts (without reference to the choice of law
principles thereof).
20. Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
officers thereto duly authorized, and the Officer has signed this Agreement.
XXXXXX CORPORATION
Date: December 17, 2008 By: /s/ Xxxxxx X. Xxxxxx
----------------- -----------------------
Xxxxxx X. Xxxxxx
Its: President and CEO
Date: December 16, 2008 OFFICER
-----------------
/s/ X. X. Xxxxxx
------------------
Page 14 of 23
EXHIBIT A
GENERAL RELEASE AND SETTLEMENT AGREEMENT
This General Release and Settlement Agreement (hereinafter "Agreement") is made
as of the "Effective Date" (as defined in Section 6(f) below) by and between
[___full name________] (hereinafter "[________]") and XXXXXX CORPORATION
(hereinafter "Xxxxxx"). The purpose of this Agreement is to fully and finally
dispose of all issues regarding [________]'s employment and separation from
employment with Xxxxxx under the Officer Special Severance Agreement as
described below.
1. The parties agree and acknowledge that there is good and sufficient
consideration for the settlement of any and all issues between [________] and
Xxxxxx and for the mutual promises contained herein. Also, the parties agree and
acknowledge that the terms of this Agreement are fair and equitable, reflecting
both the corporate interests of Xxxxxx and its recognition of [________]'s years
of valuable service.
2. [________] is voluntarily entering into this Agreement of his/her own free
will and without influence by Xxxxxx or any of its present or former officers,
representatives, agents or employees. [________] was advised of his/her right to
be represented by his/her own legal counsel regarding this matter. [________]
understands that he/she may take as long as twenty-one (21) days to consider
this Agreement before signing it. [________]'s execution of this Agreement
before the expiration of that period will constitute his/her representation and
warranty that he/she has decided that he/she does not need any additional time
to decide whether to execute it.
3. This Agreement constitutes the complete understanding between the parties.
Its purpose is to resolve any and all disputes or potential disputes without any
party incurring additional time and expense. All agree that full settlement
would best serve all interests.
4. [________] represents and warrants that he/she has the authority to enter
into this Agreement, and that he/she has not assigned any claims being released
under this Agreement to any person or entity.
5. Neither the negotiation, undertaking or execution of this Agreement shall
constitute an admission by Xxxxxx of a violation of any federal or state
constitution, statute or regulation, or common law right, whether in contact or
in tort.
Page 15 of 23
6. By accepting the terms of this Agreement, [________], for himself, his/her
heirs, executors and administrators, releases and forever discharges the
Released Parties of and from any and all liability in manner of suits, claims,
charges or demands whatsoever, whether in law or in equity, under federal, state
and municipal constitutions, statutes, charters, regulations and common law,
including, but not limited to, the Family and Medical Leave Act under Federal
and State laws, discrimination or retaliation claims under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. ss. 621 et seq.
(the "ADEA"), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
ss. 2000 et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C.
ss. 1001 et seq., the Americans with Disabilities Act, 42 U.S.C. ss. 12101 et
seq., the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. ss. 46 (a)
- 51 et seq., any and all claims for violation of any public policy having any
bearing whatsoever on the terms or conditions of [________]'s employment or
cessation of employment by Xxxxxx; all claims for relief or other benefits under
any federal, state, or local statute, ordinance, regulation, rule of decision,
or principle of common law, all claims that the Released Parties engaged in
conduct prohibited on any basis under any federal, state, or local statute,
ordinance, regulation, rule of decision, or principle of common law, and all
claims against the Released Parties, whether in contract, expressed or implied,
or in tort, including, but not limited to, breach of covenant of good faith and
fair dealing, breach of contract - expressed or implied, defamation, slander,
the tortious or wrongful discharge from employment, claims for outplacement
services, the intentional or negligent infliction of emotional or mental
distress, claims of inducement, promissory estoppel, collateral estoppel, fraud,
misrepresentation - negligent or intentional, and including any claims for
attorneys' fees or costs. This is a good and final release of all claims of
every nature and kind whatsoever, and, by this Agreement, [________] releases
the Released Parties from all claims that are known and unknown, suspected and
unsuspected, arising out of his/her employment and separation from employment
with Xxxxxx, except for claims for unemployment or workers' compensation, unpaid
wages and retirement benefits (e.g., 401(k) and pension benefits).
The term "Released Parties" used immediately above means Xxxxxx, all of its
related companies, subsidiaries and affiliates, their successors and assigns,
and all of its and their present, former and future officers, representatives,
agents or employees.
Xxxxxx, on behalf of itself and all of its related companies, subsidiaries and
affiliates, their successors and assigns releases [________], his/her heirs and
assigns from any and all liability in manner of suits, claims, charges or
demands whatsoever, whether in law or in equity, under federal, state and
municipal constitutions, statutes, charters, regulations and common law with
respect to all acts or omissions taken or not taken, as the case may be, by
him/her in good faith in the reasonable belief such acts or omissions were in
the best interest of Xxxxxx and its shareholders.
[________] acknowledges that certain states provide that a general release of
claims does not extend to claims which the person executing the release does not
know or suspect to exist in his/her favor at the time of executing the release
which, if known by him/her, may have materially affected his/her entering the
release of claims. Being aware that such statutory protection may be available
to him/her, [________] expressly, voluntarily and knowingly waives any arguable
benefit or protection of any such statute in executing this Agreement, known or
unknown.
Page 16 of 23
[________] acknowledges and understands that the release of claims under the
ADEA is subject to special waiver protections under 29 U.S.C. ss. 626(f). In
accordance with that section, [________] specifically agrees that he/she is
knowingly and voluntarily releasing and waiving any rights or claims of
discrimination under the ADEA. In particular, he/she acknowledges that he/she
understands the following:
(a) he/she is not waiving rights or claims for age discrimination under the ADEA
that may arise after the date he/she signs this Agreement;
(b) he/she is waiving rights or claims for age discrimination under the ADEA in
exchange for the consideration set forth in Section 12 of this Agreement, which
is in addition to anything of value to which he/she is already entitled; (c)
he/she is hereby advised to consult with an attorney before signing this
Agreement;
(d) he/she has twenty-one (21) days within which to consider this Agreement,
which will expire at 11:59 p.m. and must be postmarked or received in person by
DATE;
(e) he/she understands that for a period of seven (7) days after his/her
execution of this Agreement, he/she may revoke this Agreement after execution by
notifying Xxxxxx in writing. Such writing must be received by Xxxxxx by 11:59
p.m. on the seventh consecutive day after his/her execution of this Release of
Claims at the following address:
Xxxxxx Corporation
Vice President of Human Resources
XX Xxx 000
Xxxxxx, XX 00000-0000
(f) he/she understands that this Agreement will not become effective or
enforceable unless and until he/she has not revoked it and the applicable
revocation period set forth above has expired. The date on which the revocation
period expires, if [________] does not first revoke it, is the Effective Date of
this Agreement;
(g) he/she understands that nothing in this Agreement restricts his/her right to
challenge the validity of the General Release of ADEA claims, to file a charge
with the EEOC or to participate or cooperate in EEOC investigations or
proceedings.
7. [________] agrees that by this Agreement, he/she is expressly waiving his/her
right to bring or pursue any judicial action, any administrative agency or
action, any contractual action, any statutory action or procedure or any action
which he/she could have brought with respect to any matter arising from his/her
employment with Xxxxxx and separation therefrom with Xxxxxx, provided, however,
that this Agreement shall not preclude [________] from seeking unemployment
compensation or workers' compensation benefits, nor shall it constitute a waiver
with respect to any claims he/she may have for retirement benefits (e.g., 401(k)
and pension benefits). [________] also agrees that by entering into this
Agreement, he/she is waiving any right he/she may have to seek or accept damages
or relief of any kind with respect to the claims released by this Agreement or
by reason of termination of his/her employment.
Page 17 of 23
8. [________] agrees to abide in full with the terms of his/her Officer Special
Severance Agreement with Xxxxxx, dated (________), which is specifically
incorporated herein as terms of this Agreement.
9. [________] agrees to return promptly all Xxxxxx' property in his/her
possession including, but not limited to, credit cards, keys, company files and
internal documents, and any office/computer equipment which has been available
for his/her personal use.
10. This Agreement may be used as evidence in a subsequent proceeding in which
any of the parties allege a breach of this Agreement.
11. [________] understands that regardless of whether he/she enters into this
Agreement, he/she will be paid for all earned but unpaid wages as of his/her
termination date, all accrued but unused vacation and will be classified under
severance continuation status and receive ______ weeks of Basic Severance Pay
and benefits as provided for in Section 6.7 of the Xxxxxx Xxxxxxxxx Policy
("Continuing Benefits") during the Basic Severance Pay Period.
12. In consideration of entering into this Agreement, following the Effective
Date, Xxxxxx will provide the Severance Benefits as set forth in the Officer
Special Severance Agreement:
13. [________] has carefully read this Agreement and fully understands its
contents and significance, and he/she acknowledges that he/she has not relied
upon any representation or statement, written or oral, not set forth in this
document. He/she fully understands that this Agreement constitutes a waiver of
all rights available under federal and state statutes, municipal charter and
common law, with regard to any matter related to his/her employment with Xxxxxx,
and separation therefrom with Xxxxxx.
14. [________] agrees not to disclose the contents of the provisions of this
Agreement, its terms or conditions or the circumstances that resulted in or
followed [________]'s separation from employment, to any party, excluding
immediate family, except as required by law or as is reasonably necessary for
purposes of securing counsel from his/her attorney, accountant or financial
adviser. [________] and Xxxxxx both agree not to make any statement, publicly or
privately, written or verbal, to any third parties which may disparage or injure
the goodwill, reputation and business standing of you or the Company. In the
event of any violation of this provision, and the Agreement, either party may
seek all appropriate legal and equitable relief. Nothing in this Section 14 is
intended to impose restrictions on either party beyond those that are permitted
by law.
Page 18 of 23
15. This Agreement represents the complete understanding of the parties and no
other promises, or agreements, shall be binding or shall modify this Agreement,
unless in writing, signed by these parties.
16. [________] agrees that the terms of this Agreement shall be interpreted in
accordance with the laws of the State of Connecticut.
17. If any term or provision of this Agreement, or any application thereof to
any circumstances, is declared invalid, in whole or in part, or otherwise
unenforceable, such term or provision or application shall be deemed to have
been modified to the minimum extent necessary for it to be enforceable, and
shall not affect other terms or provisions or applications of this Agreement.
-----------------------------
[----------]
-----------------------------
Date
XXXXXX CORPORATION
By __________________________
Its Vice President, Human Resources
-----------------------------
Date
Page 19 of 23
EXHIBIT B
NON-COMPETE AGREEMENT
Non-Compete Agreement
This Agreement is made on ___________________________________(date), by and
between Xxxxxx Corporation (referred to as "Xxxxxx") and me,
__________________________________, an employee, on behalf of ourselves, our
heirs, successors and assigns. As used hereinafter, "Xxxxxx" means Xxxxxx
Corporation and all subsidiaries and other companies owned or controlled by it
as well as any predecessor company, and any company or business acquired by
Xxxxxx. This Agreement replaces [in its entirety without any action by Xxxxxx or
me] any existing Agreement entered into by Xxxxxx and me relating to the same
subject matter.
Xxxxxx requires that I complete and execute this Agreement. But for my execution
of this Agreement, I would not be eligible for the provisions of my
Change-In-Control Agreement signed by me on ________________.
Accordingly, Xxxxxx and I agree as follows:
1. I have had a full and complete opportunity to discuss, consider and
understand each provision of this Agreement, and agree that the terms
of this Agreement are fair and reasonable.
2. I understand that Xxxxxx invests substantial time, money and other
resources training and developing its employees, and I agree that for a
period of two (2) years following the termination of my employment for
whatever reason, I will not solicit or recruit any of Xxxxxx employees,
whether directly or indirectly, to terminate their employment with
Xxxxxx.
3. Xxxxxx develops and manufactures specialty polymer composite materials
and components mainly for the imaging, communications, computer and
peripheral, consumer products and transportation markets. It has
consistently allocated considerable resources towards research and
development activities with respect to its products, and it has devoted
a substantial amount of time and effort and incurred significant costs
in developing and maintaining its customers. I acknowledge that: (a)
Xxxxxx products are highly specialized items which have lengthy
developmental periods; (b) the identity and particular needs of Xxxxxx
customers are not generally known in the industry; (c) Xxxxxx has a
proprietary interest in the identity of its customers and customer
lists; and (d) the documents and information regarding Xxxxxx products,
processes, inventions, research, development, formulae, manufacturing
and testing methods, business plans, customer or supplier
identification, product cost and profit information, and the
specialized requirements of Xxxxxx customers are highly confidential
and are regarded as trade secrets, commonly referred to at Xxxxxx as
"Proprietary Information".
Page 20 of 23
4. During the term of employment by Xxxxxx, there may have been imparted
to me, Proprietary Information of a business or technical nature. I
understand I may have had access to Proprietary Information owned by or
on behalf of Xxxxxx and/or used in the course of its business. I will
not directly or indirectly disclose any such Proprietary Information to
any person or entity other than Xxxxxx; use any such Proprietary
Information in any way other than as authorized herein; or assist any
person or entity other than Xxxxxx to secure any benefit from such
Proprietary Information, without the written consent of the Chief
Executive Officer of Xxxxxx.
5. All files, drawings, documents photographs, manuals, equipment,
computer data or programs, electronic media, customer lists, other
records and the like (and all copies thereof) which relate in any way
to Xxxxxx business (whether or not prepared, constructed, used or
observed by me during my period of employment with Xxxxxx) are and
remain Xxxxxx sole and exclusive property, and I agree to return said
items (except for reprints or copies of published public information)
to Xxxxxx immediately upon the termination of my employment, and shall
never deliver any such item (or any description thereof) to any person
or entity, other than Xxxxxx.
6. All ideas, processes, discoveries, inventions, computer programs and
software, improvements and suggestions, whether they be patentable or
not, made, devised, conceived, developed or perfected by me alone or
with any other person or persons during the term of employment by
Xxxxxx or within six (6) months thereafter, which are in any way
reasonably related to the products, apparatus, components thereof, or
modified for use, developed, under development or pertaining to the
business (including research and development) of Xxxxxx (otherwise
referred to as "Developments"), will be the sole and exclusive property
of Xxxxxx, and I agree to sell, transfer, and assign to Xxxxxx, its
successors and assigns, my entire right, title and interest in and to
all such Developments.
7. In order to protect Xxxxxx against disclosure of any such Proprietary
Information, I agree, as further consideration for my Change-In-Control
Agreement, that for a period of two years after termination of
employment with Xxxxxx (for whatever reason), I will not, without first
obtaining written permission from the Chief Executive Officer of
Xxxxxx, engage in, render services, either as an employee, consultant
or independent contractor, or become associated in any way, either
directly or indirectly, in the research, development, manufacture, use
or sale of any product which is the same as, similar to or is
competitive with any product, development or research activity of
Xxxxxx with respect to which at any time during the two years preceding
termination of employment with Xxxxxx, or a company acquired by Xxxxxx,
my work has been directly or indirectly concerned, or with respect to
which I have acquired knowledge of any Proprietary Information. Xxxxxx
will enforce the provisions of this non-compete paragraph only for
certain technical, sales, marketing or management employees.
Page 21 of 23
8. Before I accept an offer to become associated with an organization
which may have a product which may violate this agreement as described
above, I agree to provide Xxxxxx with the following information: the
name of the company, division or product line, job duties and title.
Upon receiving sufficient information to make a determination, Xxxxxx
may release me or enforce the terms of this agreement.
9. If after conscientious and aggressive efforts, the provisions of this
Agreement prevent me from obtaining employment at a rate of
compensation at least equal to the annual rate of compensation at the
end of my employment with Xxxxxx, I may provide Xxxxxx with a detailed
written account of my efforts in any month to obtain employment which
would not conflict with the provisions of this Agreement.
10. Upon receipt of my monthly written account, Xxxxxx will, within 30
days, either:
a. pay me for that month 100% of the difference between my
current compensation, if any, and my last regular rate of
compensation at Xxxxxx, less any severance or retirement
income;
or,
b. notify me that Xxxxxx has waived its rights under the
non-compete paragraphs of this Agreement.
11. If, based on my written account, Xxxxxx reasonably concludes that I
have failed to seek employment conscientiously and aggressively, I
understand that Xxxxxx may, at its option, withhold payment for that
month.
12. Upon expiration of the two-year period after my termination with
Xxxxxx, or upon Xxxxxx failure to notify me of their decision or make a
monthly payment within 30 days after receipt of my monthly written
account, the restrictions of the non-compete paragraphs shall no longer
be in force.
13. I acknowledge that I am free to enter into this Agreement without
violating any obligations to any other person or company and that I
will not make any unauthorized use of the Proprietary Information. I
agree that following termination of my employment with Xxxxxx, I will
make the terms of this Agreement known to any subsequent employer if
such employer is engaged in any business similar to or competitive with
any product of Xxxxxx.
14. If any provision of this Agreement is found to be invalid or
unenforceable, it shall not affect the remaining provisions of this
Agreement. Further, a court shall have the authority to reform and
rewrite the "invalid or unenforceable" provision, so it will be valid
and enforceable.
Page 22 of 23
15. Any prior service that I have had with a company which is acquired by,
merged with, or otherwise becomes affiliated with Xxxxxx through joint
venture or other corporate transaction will be deemed to be continuous
employment by Xxxxxx for all purposes of this Agreement.
16. In the event that I am assigned by Xxxxxx to work for any other company
or organization which is a subsidiary or joint venture of or is
otherwise affiliated with, Xxxxxx or which is a successor company by
way of acquisition, merger or other corporate transaction, such
employment will be deemed to be continuous employment by Xxxxxx for the
purpose of this Agreement.
17. Xxxxxx failure to enforce the terms of another Agreement similar to
this with another employee, shall not constitute a waiver of any term
or provision in this Agreement.
18. This Agreement shall be subject to the laws of the State of Connecticut
and any dispute arising herein will be heard in the appropriate state
or federal court, as applicable, within this jurisdiction.
19. I acknowledge that full compliance with the terms of this Agreement is
necessary to protect the business and goodwill of Xxxxxx and that a
breach of this Agreement will irreparably and continually harm Xxxxxx,
for which money damages may not be adequate. Consequently, I understand
that, in the event I breach or threaten to breach any of these
covenants, Xxxxxx shall be entitled to both (a) a preliminary or
permanent injunction in order to prevent the continuation of such harm
and (b) money damages insofar as they can be determined. Nothing in
this Agreement, however, will be construed to prohibit Xxxxxx from also
pursuing any other remedy, Xxxxxx and I having agreed that all remedies
are cumulative.
20. No alteration or modification to any of the provisions of this
Agreement shall be valid unless made in writing and signed by both
Xxxxxx and me.
----------------------------- ------------------------ --------------
Employee signature Social Security # Date
----------------------------- ------------------------ --------------
Accepted for Xxxxxx Corporation Title Date
Page 23 of 23
