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EXHIBIT 5
THE XXXXXX CORPORATION
EMPLOYMENT AGREEMENT FOR XXXXXX X. XXXXXXX
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THE XXXXXX CORPORATION
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EMPLOYMENT AGREEMENT FOR XXXXXX X. XXXXXXX
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1. Term of Employment................................................... 1
2. Position, Duties and Responsibilities................................ 1
3. Base Salary.......................................................... 2
4. Annual Incentive Awards.............................................. 2
5. Long-Term Stock Incentive Programs................................... 2
6. Employment Bonus..................................................... 2
7. Employee Benefit Programs............................................ 3
8. Disability........................................................... 3
9. Reimbursement of Business and Other Expenses......................... 4
10. Termination of Employment............................................ 4
11. Confidentiality; Cooperation with Regard to Litigation;
Non-disparagement.................................................... 13
12. Non-competition...................................................... 14
13. Non-solicitation..................................................... 15
14. Remedies............................................................. 15
15. Resolution of Disputes............................................... 15
16. Indemnification...................................................... 16
17. Excise Tax Gross-Up.................................................. 17
18. Effect of Employment Agreement on Other Benefits..................... 18
19. Assignability; Binding Nature........................................ 19
20. Representation....................................................... 19
21. Conflict between Employment Agreements............................... 19
22. Amendment or Waiver.................................................. 19
23. Severability......................................................... 19
24. Survivorship......................................................... 20
25. Beneficiaries/References............................................. 20
26. Notices.............................................................. 20
27. Governing Law/Jurisdiction........................................... 20
28. Headings............................................................. 20
29. Counterparts......................................................... 21
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EMPLOYMENT Employment Agreement
Agreement, made and entered into as of the 9th day of June, 1999 by and
between The Xxxxxx Corporation, a Delaware corporation (together with its
successors and assigns, the "Company" or "Turner"), and Xxxxxx X. Xxxxxxx (the
"Executive").
W I T N E S S E T H:
WHEREAS, effective October 1, 1999 Xxxxxx desires to employ Executive as
its Chairman and Chief Executive Officer pursuant to an agreement embodying the
terms of such employment (this "Employment Agreement") and Executive desires to
enter into this Employment Agreement and to accept such employment, subject to
the terms and provisions of this Employment Agreement, and
WHEREAS, Executive has executed, on the same date of execution of this
Employment Agreement, a separate agreement governing Executive's employment as
Vice Chairman of Xxxxxx for the period commencing today and ending September 30,
1999.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, Xxxxxx and Executive (individually a "Party" and
together the "Parties") agree to be bound in accordance with the terms of this
Employment Agreement.
1. Term of Employment.
The term of Executive's employment under this Employment Agreement
shall commence on October 1, 1999 (the "Effective Date") and end on December 31,
2003 (the "Original Term of Employment"), unless terminated earlier in
accordance herewith. The Original Term of Employment shall be automatically
renewed for successive one-year terms (the "Renewal Terms") unless at least 180
days prior to the expiration of the Original Term of Employment or any Renewal
Term, either Party notifies the other Party in writing that he or it is electing
to terminate this Employment Agreement at the expiration of the then current
Term of Employment. "Term of Employment" shall mean the Original Term of
Employment and all Renewal Terms.
2. Position, Duties and Responsibilities.
(a) Generally. Executive shall serve as Chairman of Xxxxxx'x board
of directors (the "Board") and as its Chief Executive Officer. Executive shall
have and perform such duties, responsibilities, and authorities as are customary
for the Chairman of the Board and Chief Executive Officer of corporations of
similar size and businesses as Xxxxxx, as they each may exist from time to time
and as are consistent with such positions and status. Executive shall devote
substantially all of his business time and attention (except for periods of
vacation or absence due to illness), and his best efforts, abilities,
experience, and talent to the positions of Chairman of the Board and Chief
Executive Officer of Xxxxxx.
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(b) Other Activities. Anything herein to the contrary
notwithstanding, nothing in this Employment Agreement shall preclude Executive
from (i) serving on the boards of directors of a reasonable number of other
corporations or the boards of a reasonable number of trade associations and/or
charitable organizations, provided that Executive shall notify the Board prior
to accepting any such position, (ii) engaging in charitable activities and
community affairs, and (iii) managing his personal investments and affairs,
provided that such activities do not materially interfere with the proper
performance of Executive's duties and responsibilities under this Employment
Agreement.
(c) Place of Employment. Executive's principal place of
employment shall be Xxxxxx'x corporate offices.
3. Base Salary.
Executive shall be paid an annualized salary ("Base Salary"),
payable in accordance with the regular payroll practices of Xxxxxx, of not less
than $850,000, subject to annual adjustment as determined in the sole and
absolute discretion of the Compensation Committee (the "Committee") of the
Board, provided that Executive's initial salary review shall occur on or before
January 1, 2001.
4. Annual Incentive Awards.
Executive shall be eligible to participate in Xxxxxx'x annual
incentive compensation plan with a target annual incentive award opportunity
equal to 6% of the bonus pool as established in the sole and absolute discretion
of the Committee. From the period commencing on the Effective Date and ending
December 31, 2001, Executive's annual incentive award is guaranteed to be no
less than $550,000 per annum (any annual incentive attributable to 1999 shall be
calculated on a pro rata basis). Payment of Executive's annual incentive award
shall be made by the Company at the same time that other senior-level executives
receive their annual incentive awards.
5. Long-Term Incentive Programs.
Executive shall be eligible to participate in Xxxxxx'x long term
incentive compensation programs on a similar basis as Xxxxxx'x other
senior-level executives.
6. Employment Bonus.
In consideration of Executive losing certain perquisites and
benefits with his previous employer, Xxxxxx shall provide Executive with a
$750,000 employment bonus, payable on January 3, 2000, provided that Executive
has not terminated his employment without Good Reason as of that date.
7. Employee Benefit Programs.
During the Term of Employment, except as otherwise noted below,
Executive shall be entitled to participate in such employee pension and welfare
benefit plans and programs of Xxxxxx as are made available to Xxxxxx'x employees
generally, as such plans or programs may be in effect from time to time,
including, without limitation, health, medical, dental, long-term disability,
section 401(k) retirement plan, supplemental retirement plan or plans, and tax
and financial planning services. Executive shall be entitled to 4 weeks of
vacation and shall take holidays in accordance with Xxxxxx'x standard holiday
schedule as amended from time to time.
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8. Disability.
(a) During the Term of Employment, as well as during the Severance
Period, Executive shall be entitled to disability coverage in accordance with
the terms of Xxxxxx'x Long- Term Disability Program. In the event Executive
becomes disabled, as that term is defined under Xxxxxx'x Long-Term Disability
Program ("Disability") Executive shall be entitled to receive pursuant to
Xxxxxx'x Long-Term Disability Program or otherwise, and in place of his Base
Salary, an amount equal to 67% of Executive's Base Salary, at the annual rate in
effect on the commencement date of his eligibility for Xxxxxx'x long-term
disability benefits ("Commencement Date") up to a maximum benefit of $17,000 per
month. In the event Executive's Disability lasts, or Xxxxxx reasonably
determines is likely to last (based on the written opinion of a board certified
physician), for a period of 180 days from the onset of such Disability, Xxxxxx
may terminate Executive's employment hereunder. If Executive is terminated due
to Disability, (i) Executive shall be entitled to receive all earned awards;
(ii) all of Executive's outstanding but unvested stock options shall vest
immediately and remain exercisable for 1 year from the Termination Date; and
(iii) all restrictions regarding Executive's restricted or deferred stock shall
immediately lapse.
(b) Executive shall be entitled to a pro rata annual incentive
award at $550,000 for the year in which the Commencement Date occurs, payable in
a lump sum not later than 15 days after the Commencement Date. Executive shall
not be entitled to any annual incentive award with respect to the period
following the Commencement Date. If Executive recommences his position after a
leave for Disability, he shall be entitled to a pro rata annual incentive award
for the year he resumes such position and shall thereafter be entitled to annual
incentive awards in accordance with Section 4 hereof.
(c) During the period Executive is receiving Disability benefits
pursuant to Section 8(a) above, he shall continue to be treated as an employee
for purposes of all employee benefits and entitlements in which he was
participating on the Commencement Date, including without limitation, the
benefits and entitlements referred to in Sections 5, 6 and 7 above, except that
Executive shall not be entitled to receive any annual salary increases or any
new long-term incentive plan grants following the Commencement Date.
(d) In the event that Executive is terminated due to Disability
prior to receipt of the bonus due Executive pursuant to Section 6 of this
Employment Agreement, Executive shall also receive a cash payment of $750,000.
9. Reimbursement of Business and Other Expenses.
Executive is authorized to incur reasonable expenses in carrying out
his duties and responsibilities under this Employment Agreement, and Xxxxxx
shall promptly reimburse him for all reasonable business expenses incurred in
connection therewith, subject to documentation in accordance with Xxxxxx'x
applicable policies.
10. Termination of Employment.
(a) Termination Due to Death. In the event Executive's employment
with Xxxxxx is terminated due to his death, Executive's estate or his
beneficiaries, as the case may be, shall be entitled to and their sole remedies
under this Employment Agreement shall be:
(i) Base Salary through the date of death, which shall be
paid in a cash lump sum not later than 15 days following
the date of termination of Executive's employment (the
"Termination Date");
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(ii) any incentive awards earned as of December 31 of the
prior year (but not yet paid), which shall be paid in a
cash lump sum not later than 15 days following the
Termination Date;
(iii) pro rata annual incentive award for the year in which
the termination occurs, assuming that Executive would
have received an award equal to $550,000 for the year
and which shall be payable in a cash lump sum promptly
(but in no event later than 15 days) after the
Termination Date. Upon completion of the year in which
Executive's employment hereunder has been terminated,
the Committee shall determine the bonus amount Executive
would have been entitled to had his employment not been
terminated. In the event the Committee determines
Executive would have been entitled to a larger pro rata
bonus based upon the performance criteria typically used
by the Committee, the Company shall pay to Executive (or
Executive's estate), in a lump sum, within 15 days of
such determination, the amount of such bonus minus any
pro rata bonus previously paid to Executive (or
Executive's estate) pursuant to this paragraph on or
after the Termination Date;
(iv) immediate vesting of any of Executive's outstanding
stock options. Executive (or Executive's estate) shall
have the right to exercise all stock options for a
period of one (1) year following the Termination Date or
for the remainder of the exercise period, if less;
(v) elimination of all restrictions on any restricted stock
or deferred stock awards;
(vi) other or additional benefits then due or earned in
accordance with applicable plans and programs of Xxxxxx;
(vii) settlement of all deferred compensation arrangements in
accordance with any then applicable deferred
compensation or election form; and
(viii)provided that Executive's death occurs after the
execution of this Employment Agreement, but prior to
Executive's receipt of the bonus payable to Executive
pursuant to Section 6 of this Employment Agreement, a
cash payment of $750,000.
(b) Termination by Xxxxxx for Cause.
(i) "Cause" shall mean:
(A) Executive is convicted of, or pleads nolo
contendere to, a felony which is materially and
demonstrably injurious to Xxxxxx'x financial
condition or reputation;
(B) Executive engages in conduct that constitutes
willful gross neglect or willful gross misconduct
which result in material losses to Xxxxxx in
carrying out his duties under this
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Employment Agreement;
(C) Executive's refusal to comply with any lawful
order of the Board; or
(D) Executive's willful breach of Sections 11, 12 or
13 of this Employment Agreement, which would
result in material losses to Xxxxxx.
For purposes of this Employment Agreement, an act or failure to act on
Executive's part shall be considered "willful" if it was done or omitted to be
done by him in bad faith, but shall not include any act or failure to act which
(i) results from Executive's incapacity, or (ii) Executive reasonably believes
is in Xxxxxx'x best interests.
(ii) A termination for Cause shall not take effect
unless the provisions of this paragraph (ii) are
complied with. Executive shall be given written
notice by Xxxxxx of its intention to terminate
him for Cause, such notice (A) to state in
detail the particular act or acts or failure or
failures to act that constitute the grounds on
which the proposed termination for Cause is
based and (B) to be given within 90 days of
Xxxxxx'x learning of such act or acts or failure
or failures to act. Executive shall have 30
days after the date that such written notice has
been given to him in which to cure such conduct,
to the extent such cure is possible. If he
fails to cure such conduct, Executive shall then
be entitled to appear at a hearing before the
Committee. Such hearing shall be held within 25
days of such notice to Executive, provided he
requests such hearing within 10 days of the
written notice from Xxxxxx of the intention to
terminate Executive for Cause. If, within five
(5) days following such hearing, Executive is
furnished written notice by no less than 2/3's
of the Board confirming that, in its good faith
judgment, grounds for Cause on the basis of the
original notice exist, he shall thereupon be
terminated for Cause.
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(iii) In the event Xxxxxx terminates Executive's employment
for Cause prior to a Change in Control, Executive shall
be entitled to and his sole remedies under this
Employment Agreement shall be:
(A) Base Salary through the date of the termination of
his employment for Cause, which shall be paid in a
cash lump sum not later than 15 days following the
Termination Date;
(B) any incentive awards earned as of December 31 of
the prior year (but not yet paid), which shall be
paid in a cash lump sum not later than 15 days
following the Termination Date; and
(C) other or additional benefits then due or earned in
accordance with applicable plans or programs of
Xxxxxx.
(c) Termination Without Cause or by Executive for Good Reason prior
to Change in Control. In the event Xxxxxx terminates Executive's employment
without Cause (which termination shall be effective as of the date specified by
Xxxxxx in a written notice to Executive), other than due to death or Disability,
or in the event Executive terminates this Employment Agreement for Good Reason
(as defined below), in either case prior to a Change in Control (as defined
below), Executive shall be entitled to and his sole remedies under this
Employment Agreement shall be:
(i) Base Salary through the Termination Date; payable in a
lump sum within 15 days of the Termination Date;
(ii) 1/12th of the sum of (A) Executive's Base Salary
at the annualized rate in effect on the
Termination Date (or, in the event a Base salary
reduction is the basis for a Good Reason
termination, the Base Salary in effect
immediately prior to such reduction), plus (B)
$550,000 (Executive's target annual incentive
for purposes of this provision), such amount
payable monthly for the longer of (x) the
remaining duration of the Original Employment
Term, or (y) 24 months (the "Severance Period");
(iii) pro rata annual incentive award for the year in which
the termination occurs assuming Executive would have
received an award equal to $550,000 for the year,
payable in a lump sum within 15 days of the Termination
Date;
(iv) immediate vesting of any outstanding stock options which
would have vested by the conclusion of the Severance
Period. Executive shall have the right to exercise all
vested stock options for a period of one (1) year from
the termination date or for the remainder of the
exercise period, if less;
(v) elimination of all restrictions on any restricted stock
or deferred stock awards which would have vested through
the conclusion of the Severance Period;
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(vi) the balance of any incentive awards earned as of
December 31 of the prior year (but not yet paid), which
shall be paid in a cash lump sum within 15 days
following the Termination Date;
(vii) immediate vesting of Executive's accrued benefits under
any supplemental retirement benefit plan ("SERP")
maintained by Xxxxxx, with the payments to be made in
accordance with the terms and conditions of the SERP;
(viii)other or additional benefits then due or earned in
accordance with applicable plans and programs of Xxxxxx;
(ix) settlement of all deferred compensation arrangements in
accordance with any then applicable deferred
compensation or election form; and
(x) continued participation in all medical, health and life
insurance plans at the same benefit level at which
Executive was participating on the Termination Date
until the earlier of:
(A) the end of the Severance Period; or
(B) the date, or dates, Executive receives
equivalent coverage and benefits under the
plans and programs of a subsequent
employer (such coverage and benefits to be
determined on a coverage-by-coverage, or
benefit-by-benefit, basis); provided that
(1) if Executive is precluded from
continuing his participation in any
employee benefit plan or program as
provided in this clause (x) of this
Section 10(c), he shall receive cash
payments equal on an after-tax basis to
the cost to him of obtaining the benefits
provided under the plan or program in
which he is unable to participate for the
period specified in this clause (x) of
this Section 10(c), (2) such cost shall be
deemed to be the lowest reasonable cost
that would be incurred by Executive in
obtaining such benefit himself on an
individual basis, and (3) payment of such
amounts shall be made quarterly in advance.
"Termination Without Cause" shall mean Executive's employment is
terminated by Xxxxxx for any reason other than Cause (as defined in Section
10(b)) or due to Executive's death.
"Good Reason" shall mean Executive's termination of his employment
following the occurrence, without Executive's written consent, of one or more of
the following events (except as a result of a prior termination):
(A) a material diminution or adverse change in
Executive's positions, titles, or offices
(as set forth in Section 2(a)), status,
rank, nature of responsibilities, or
authority within Xxxxxx, or a removal of
Executive from or any failure to elect or
re-elect or, as the case may be, nominate
Executive to any such positions or
offices, including
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Executive's position as Chairman of the Board,
after delivery of written notice to the Board by
Executive and 20 days to cure;
(B) an assignment of any duties to Executive which are
inconsistent with his status as Chairman of the
Board and Chief Executive Officer of Xxxxxx and
other positions held under Section 2(a);
(C) any decrease in Executive's (i) annual
Base Salary or (ii) target annual
incentive award opportunity (or for each
of 1999, 2000, and 2001, except as
permitted hereunder, any failure to pay
Executive an annual incentive equal to
$550,000 (such amount to be prorated for
1999));
(D) a relocation of Executive to a location more than
35 miles from Xxxxxx'x corporate offices (except
any planned relocation of Xxxxxx of which
Executive has been notified prior to entering into
this Employment Agreement);
(E) any failure to secure the agreement of any
successor corporation or other entity to Xxxxxx to
fully assume Xxxxxx'x obligations under this
Employment Agreement; or
(F) any other failure by Xxxxxx to perform any
material obligation under, or breach by Xxxxxx of
any material provision of, this Employment
Agreement that is not cured within 30 days of
receipt of written notice from Executive.
A "Change in Control" shall be deemed to occur upon any of the
following:
(i) any Person becomes the Beneficial Owner,
directly or indirectly, of either (1) 35% or
more of Xxxxxx'x outstanding common stock, or
(2) 35% of the outstanding securities of any
other class or classes which individually or
together have the power (other than upon a
failure to pay dividends, unless that failure
has occurred) to elect a majority of the members
of the Board, except that an acquisition of
securities by an employee benefit plan of Xxxxxx
or a subsidiary will never be a Change of
Control; or
(ii) the Board determines that a tender offer statement filed
by any person with the Securities and Exchange
Commission indicates an intention on the part of that
person to acquire control of the Company; or
(iii) there is a change in the membership of the Board and
immediately following the change a majority of the
members of the Board are not persons who (1) had been
directors of Xxxxxx for at least the preceding 24
consecutive months or (2) when they initially were
elected to the Board, (x) were nominated (if they were
elected by the stockholders) or elected (if they were
elected by the directors) with the affirmative vote of
two-thirds of the
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directors who were Continuing Directors at the time of
the nomination or election by the Board; and (y) were
not elected as a result of an actual or threatened
solicitation of proxies or consents by a person other
than Xxxxxx'x Board or an agreement intended to avoid or
settle such proxy solicitation (the directors described
in clauses (1) and (2) of this subsection being
"Continuing Directors"); or
(iv) Xxxxxx ceases to be required to file reports under
Section 13 of the Exchange Act.
For purposes of this definition:
(A) The term "Beneficial Owner" shall have the meaning
ascribed to such term in Rule 13d-3 under the
Exchange Act (including any successor to such
Rule).
(B) The term "Exchange Act" means the Securities
Exchange Act of 1934, as amended from time to
time, or any successor act thereto.
(C) The term "Person" shall have the meaning ascribed
to such term in Section 3(a)(9) of the Exchange
Act and used in Sections 13(d) and 14(d) thereof,
including "group" as defined in Section 13(d)
thereof.
(d) Voluntary Termination Prior to a Change of Control. Prior to a
Change of Control, in the event of a termination of employment by Executive on
his own initiative after delivery of 10 business days advance written notice,
other than a termination due to death, by Executive for Good Reason, or Approved
Early Retirement or Normal Retirement pursuant to Section 10(f) below, Executive
shall have the same entitlements as provided in Section 10(b)(iii) above for a
termination for Cause.
(e) Termination after a Change in Control. In the event a Change in
Control occurs after October 1, 1999 and Executive's employment is terminated by
Xxxxxx or by Executive for any reason whatsoever, Executive shall be entitled to
the following payments:
(i) Base Salary through the Termination Date; payable in a
lump sum within 15 days of the Termination Date;
(ii) 3 times the sum of (A) Executive's Base Salary,
at the annualized rate in effect on the
Termination Date (or in the event a Base Salary
reduction is the basis for a Good Reason
termination, the Base Salary in effect
immediately prior to such reduction) plus (B)
the greater of (1) the annual incentive received
by Executive for the most recently completed
twelve-month operating period, or (2) $550,000,
such amount payable in a lump sum within 15 days
of the Termination Date;
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(iii) pro rata annual incentive award for the year in which
termination occurs assuming that Executive would have
received an award equal to Executive's target bonus for
such year; payable in a lump sum within 15 days of the
Termination Date;
(iv) immediate vesting of all outstanding stock options and
the right to exercise such stock options for a period of
three years or the remainder of the exercise period, if
less;
(v) elimination of all restrictions on any restricted stock
or deferred stock awards;
(vi) the balance of any incentive awards earned as of
December 31 of the prior year (but not yet paid), which
shall be paid in a single lump sum not later than 15
days following the Termination Date;
(vii) immediate vesting of Executive's accrued benefits under
any SERP maintained by Xxxxxx, with the payments to be
made in accordance with the terms and conditions of the
SERP;
(viii)other or additional benefits then due or earned in
accordance with applicable plans and programs of Xxxxxx;
(ix) settlement of all deferred compensation arrangements in
accordance with any then applicable deferred
compensation or election form;
(x) continued participation in all medical, health and life
insurance plans at the same benefit level at which he
was participating on the date of termination of his
employment until the earlier of:
(A) the end of the Severance Period; or
(B) the date, or dates, Executive receives
equivalent coverage and benefits under the
plans and programs of a subsequent
employer (such coverage and benefits to be
determined on a coverage-by-coverage, or
benefit-by-benefit, basis); provided that
(1) if Executive is precluded from
continuing his participation in any
employee benefit plan or program as
provided in this clause (x) of this
Section 10(e), he shall receive cash
payments equal on an after-tax basis to
the cost to him of obtaining the benefits
provided under the plan or program in
which he is unable to participate for the
period specified in this clause (x) of
this Section 10(e), (2) such cost shall be
deemed to be the lowest reasonable cost
that would be incurred by Executive in
obtaining such benefit himself on an
individual basis, and (3) payment of such
amounts shall be made quarterly in
advance, and
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(xi) In the event that Executive is terminated prior to
receipt of the bonus due Executive pursuant to Section 6
of this Employment Agreement, Executive shall also
receive a cash payment of $750,000.
For purposes of any termination pursuant to this Section 10(e), the term
"Severance Period" shall mean the period of 36 months following the termination
of Executive's employment.
In the event Executive is terminated for any reason (including without
limitation by the Company for death or Disability) after a Change of Control has
occurred, Executive's entitlement to the payments due him pursuant to this
paragraph (e) of this Section 10 shall be instead of, and not in addition to,
payments otherwise payable to Executive pursuant to this Employment Agreement.
However, Executive shall continue to be entitled to any additional payments
which may be due him pursuant to any other plans or policies maintained by the
Company.
(f) Approved Early Retirement or Normal Retirement. Upon Executive's
Approved Early Retirement or Normal Retirement (each as defined below),
Executive shall be entitled to and his sole remedies under this Employment
Agreement shall be:
(i) Base Salary through the Termination Date, which shall be
paid in a cash lump sum not later than 15 days following
the Termination Date;
(ii) pro rata annual incentive award for the year in which
the termination occurs, assuming that Executive would
have received an award equal to $550,000 for the year
and which shall be payable in a cash lump sum promptly
(but in no event later than 15 days) after the
Termination Date;
(iii) immediate vesting of all outstanding stock options and
the right to exercise such stock options for a period of
one (1) year following the Termination Date or for the
remainder of the exercise period, if less;
(iv) elimination of all restrictions on any restricted stock
or deferred stock awards;
(v) the balance of any incentive awards earned as of
December 31 of the prior year (but not yet paid), which
shall be paid in a single lump sum not later than 15
days following the Termination Date;
(vi) continued participation in all medical, health and life
insurance plans at the same benefit level at which
Executive was participating on the Termination Date
until the earlier of:
(A) Executive's attainment of age [62]; or
(B) the date, or dates, he receives
substantially equivalent coverage and
benefits under the plans and programs of a
subsequent employer (such coverage and
benefits to be determined on a
coverage-by-coverage, or
benefit-by-
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benefit, basis); provided that (1) if Executive is
precluded from continuing his participation in any
employee benefit plan or program as provided in
this clause (vi) of this Section 10(f), he shall
receive cash payments equal on an after-tax basis
to the cost to him of obtaining the benefits
provided under the plan or program in which he is
unable to participate for the period specified in
this clause (vi) of this Section 10(f), (2) such
cost shall be deemed to be the lowest cost that
would be incurred by Executive in obtaining such
benefit himself on an individual basis, and (3)
payment of such amounts shall be made quarterly in
advance; and
(vii) other or additional benefits then due or earned in
accordance with applicable plans and programs of Xxxxxx.
"Approved Early Retirement" shall mean Executive's voluntary
termination of employment with Xxxxxx at or after attaining (i) age [60], and
(ii) 10 years of service, if such termination is approved in advance by the
Committee.
"Normal Retirement" shall mean Executive's voluntary termination of
employment with Xxxxxx at or after attaining age [62].
(g) Mitigation and Offset. Executive shall have no duty to mitigate
any payments due Executive from Xxxxxx hereunder.
(h) Nature of Payments. Any amounts due under this Section 10 are in
the nature of severance payments considered to be reasonable by Xxxxxx and are
not in the nature of a penalty.
(i) Exclusivity of Severance Payments. Upon termination of
Executive's employment during the Term of Employment, he shall not be entitled
to any severance payments or severance benefits from Xxxxxx or any payments by
Xxxxxx on account of any claim by him of wrongful termination, including claims
under any federal, state or local human and civil rights or labor laws, other
than the payments and benefits provided in this Section 10.
(j) Release of Employment Claims. Executive agrees, as a condition
to receipt of the termination payments and benefits provided for in this Section
10, that he will execute a mutual release agreement, in a form reasonably
satisfactory to Xxxxxx, releasing any and all claims arising out of Executive's
employment (other than enforcement of this Employment Agreement, Executive's
rights under any of Xxxxxx'x incentive compensation and employee benefit plans
and programs to which he is entitled under this Employment Agreement, and any
claim for any tort for personal injury not arising out of or related to his
termination of employment).
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11. Confidentiality; Cooperation with Regard to Litigation;
Non-disparagement.
(a) During the Term of Employment and thereafter, Executive shall
not, without Xxxxxx'x prior written consent, disclose to anyone (except in good
faith in the ordinary course of business to a person who will be advised by
Executive to keep such information confidential) or make use of any Confidential
Information except in the performance of his duties hereunder or when required
to do so by legal process, by any governmental agency having supervisory
authority over the business of Xxxxxx or by any administrative or legislative
body (including a committee thereof) that requires him to divulge, disclose or
make accessible such information. In the event that Executive is so ordered, he
shall give prompt written notice to Xxxxxx to allow Xxxxxx the opportunity to
object to or otherwise resist such order.
(b) During the Term of Employment and thereafter, Executive shall
not disclose the existence or contents of this Employment Agreement beyond what
is disclosed in the proxy statement or documents filed with the government
unless and to the extent such disclosure is required by law, by a governmental
agency, or in a document required by law to be filed with a governmental agency
or in connection with enforcement of his rights under this Employment Agreement.
In the event that disclosure is so required, Executive shall give prompt written
notice to Xxxxxx to allow Xxxxxx the opportunity to object to or otherwise
resist such requirement. This restriction shall not apply to such disclosure by
him to members of his immediate family, his tax, legal or financial advisors,
any lender, or tax authorities, or to potential future employers to the extent
necessary, each of whom shall be advised not to disclose such information.
(c) "Confidential Information" shall mean all information concerning
the business of Xxxxxx or any Subsidiary relating to any of their products,
product development, trade secrets, customers, suppliers, finances, and business
plans and strategies. Excluded from the definition of Confidential Information
is information (i) that is or becomes part of the public domain, other than
through the breach of this Employment Agreement by Executive or (ii) regarding
Xxxxxx'x business or industry properly acquired by Executive in the course of
his career as an executive in Xxxxxx'x industry and independent of Executive's
employment by Xxxxxx. For this purpose, information known or available generally
within the trade or industry of Xxxxxx or any Subsidiary shall be deemed to be
known or available to the public.
(d) "Subsidiary" shall mean any corporation controlled directly or
indirectly by Xxxxxx.
(e) Executive agrees to cooperate with Xxxxxx, during the Term of
Employment and thereafter (including following Executive's termination of
employment for any reason), by making himself reasonably available to testify on
behalf of Xxxxxx or any Subsidiary in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, and to assist Xxxxxx, or any
Subsidiary, in any such action, suit, or proceeding, by providing information
and meeting and consulting with the Board or its representatives or counsel, or
representatives or counsel to Xxxxxx, or any Subsidiary as reasonably requested;
provided, however, that the same does not materially interfere with his then
current professional activities. Xxxxxx agrees to reimburse Executive, on an
after-tax basis, for all expenses actually incurred in connection with his
provision of testimony or assistance.
(f) Executive agrees that, during the Term of Employment and
thereafter (including following Executive's termination of employment for any
reason) he will not make statements or representations, or otherwise
communicate, directly or indirectly, in writing, orally, or otherwise, or take
any action which may, directly or indirectly, disparage Xxxxxx or any Subsidiary
or their respective officers, directors, employees, advisors, businesses or
reputations. Xxxxxx agrees that, during the Term of Employment and thereafter
(including
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following Executive's termination of employment for any reason), Xxxxxx will not
make statements or representations, or otherwise communicate, directly or
indirectly, in writing, orally, or otherwise, or take any action which may
directly or indirectly, disparage Executive or his business or reputation.
Notwithstanding the foregoing, nothing in this Employment Agreement shall
preclude either Executive or Xxxxxx from making truthful statements or
disclosures that are required by applicable law, regulation or legal process.
12. Non-competition.
(a) During the Restriction Period (as defined in Section 12(b)
below), Executive shall not engage in Competition with Xxxxxx or any Subsidiary.
"Competition" shall mean engaging in any activity, except as provided below, for
a Competitor of Xxxxxx or any Subsidiary, whether as an employee, consultant,
principal, agent, officer, director, partner, shareholder (except as a less than
one percent shareholder of a publicly traded company) or otherwise. A
"Competitor" shall mean any corporation or other entity which competes, directly
or indirectly, with the business conducted by Xxxxxx, as determined on the date
of termination of Executive's employment. If Executive commences employment or
becomes a consultant, principal, agent, officer, director, partner, or
shareholder of any entity that is not a Competitor at the time Executive
initially becomes employed or becomes a consultant, principal, agent, officer,
director, partner, or shareholder of the entity, future activities of such
entity shall not result in a violation of this provision unless (x) such
activities were contemplated by Executive at the time Executive initially became
employed or becomes a consultant, principal, agent, officer, director, partner,
or shareholder of the entity or (y) Executive commences directly or indirectly
overseeing or managing the activities of an entity which becomes a Competitor
during the Restriction Period, which activities are competitive with the
activities of Xxxxxx or any Subsidiary. Executive shall not be deemed indirectly
overseeing or managing the activities of such Competitor which are competitive
with the activities of Xxxxxx or any Subsidiary so long as he does not regularly
participate in discussions with regard to the conduct of the competing business.
(b) For the purposes of this Section 12, "Restriction Period" shall
mean the period beginning with the Effective Date and ending with:
(i) in the case of a termination of Executive's employment
without Cause or by Executive for Good Reason, in either
case prior to a Change of Control, the earlier of (1) 24
months after such termination and (2) the occurrence of
a Change of Control;
(ii) in the case of a termination of Executive's employment
for Cause, the earlier of (1) 24 months after such
termination and (2) the occurrence of a Change of
Control;
(iii) in the case of a voluntary termination of Executive's
employment pursuant to Section 10(d) above, the date of
such termination;
(iv) in the case of Approved Early Retirement or Normal
Retirement pursuant to Section 10(f) above, the
remainder of the Term of Employment; or
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(v) in the case of termination of Executive's employment
without Cause or by Executive for Good Reason, in either
case following a Change of Control, immediately upon
such termination of employment.
13. Non-solicitation.
During the period beginning with the Effective Date and ending 18
months following the termination of Executive's employment, Executive shall not
induce employees of Xxxxxx or any Subsidiary to terminate their employment, nor
shall Executive solicit or encourage any of Xxxxxx'x or any Subsidiary's
non-retail customers, or any corporation or other entity in a joint venture
relationship (directly or indirectly) with Xxxxxx or any Subsidiary, to
terminate or diminish their relationship with Xxxxxx or any Subsidiary or to
violate any agreement with any of them. During such period, Executive shall not
hire, either directly or through any employee, agent or representative, any
employee of Xxxxxx or any Subsidiary or any person who was employed by Xxxxxx or
any Subsidiary within 180 days of such hiring.
14. Remedies.
If Executive breaches any of the provisions contained in Sections
11, 12 or 13 above, Xxxxxx (a) subject to Section 15, shall have the right to
immediately terminate all payments and benefits due under this Employment
Agreement and (b) shall have the right to seek injunctive relief. Executive
acknowledges that such a breach of Sections 11,12 or 13 would cause irreparable
injury and that money damages would not provide an adequate remedy for Xxxxxx;
provided, however, the foregoing shall not prevent Executive from contesting the
issuance of any such injunction on the ground that no violation or threatened
violation of Section 11, 12 or 13 has occurred.
15. Resolution of Disputes.
Any controversy or claim arising out of or relating to this
Employment Agreement or any breach or asserted breach hereof or questioning the
validity and binding effect hereof arising under or in connection with this
Employment Agreement, other than seeking injunctive relief under Section 14,
shall be resolved by binding arbitration, to be held at an office closest to
Xxxxxx'x principal offices in accordance with the rules and procedures of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Pending
the resolution of any arbitration or court proceeding, Xxxxxx shall continue
payment of all amounts and benefits due Executive under this Employment
Agreement. All costs and expenses of any arbitration or court proceeding
(including fees and disbursements of counsel) shall be borne by the respective
party incurring such costs and expenses, but Xxxxxx shall reimburse Executive
for such reasonable costs and expenses in the event he substantially prevails in
such arbitration or court proceeding. Notwithstanding the foregoing, all
reasonable costs and expenses (including fees and disbursements of counsel)
incurred by Executive pursuant to this Section 15 shall be paid on behalf of or
reimbursed to Executive promptly by Xxxxxx; provided, however, that no
reimbursement shall be made of such expenses if and to the extent the
arbitrator(s) determine(s) that any of Executive's litigation assertions or
defenses were in bad faith or frivolous.
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16. Indemnification.
(a) Company Indemnity. Xxxxxx agrees that if Executive is made a
party, or is threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director, officer or employee of Xxxxxx
or any Subsidiary or is or was serving at the request of Xxxxxx or any
Subsidiary as a director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether or not the basis of such
Proceeding is Executive's alleged action in an official capacity while serving
as a director, officer, member, employee or agent, Executive shall be
indemnified and held harmless by Xxxxxx to the fullest extent legally permitted
or authorized by Xxxxxx'x certificate of incorporation or bylaws or resolutions
of Xxxxxx'x Board or, if greater, by the laws of the State of Delaware against
all cost, expense, liability and loss (including, without limitation, attorney's
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by Executive in
connection therewith, and such indemnification shall continue as to Executive
even if he has ceased to be a director, member, officer, employee or agent of
Xxxxxx or other entity and shall inure to the benefit of Executive's heirs,
executors and administrators. Xxxxxx shall advance to Executive all reasonable
costs and expenses to be incurred by him in connection with a Proceeding within
20 days after receipt by Xxxxxx of a written request for such advance. Such
request shall include an undertaking by Executive to repay the amount of such
advance if it shall ultimately be determined that he is not entitled to be
indemnified against such costs and expenses. The provisions of this Section
16(a) shall not be deemed exclusive of any other rights of indemnification to
which Executive may be entitled or which may be granted to him, and it shall be
in addition to any rights of indemnification to which he may be entitled under
any policy of insurance.
(b) No Presumption Regarding Standard of Conduct. Neither the
failure of Xxxxxx (including its Board, independent legal counsel or
stockholders) to have made a determination prior to the commencement of any
proceeding concerning payment of amounts claimed by Executive under Section
16(a) above that indemnification of Executive is proper because he has met the
applicable standard of conduct, nor a determination by Xxxxxx (including its
Board, independent legal counsel or stockholders) that Executive has not met
such applicable standard of conduct, shall create a presumption that Executive
has not met the applicable standard of conduct.
(c) Liability Insurance. Xxxxxx agrees to continue and maintain a
directors and officers' liability insurance policy covering Executive to the
extent Xxxxxx provides such coverage for its other executive officers.
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17. Excise Tax Gross-Up.
Notwithstanding any other provision of this Employment Agreement or
any other agreement between Executive and Xxxxxx, if Executive becomes entitled
to one or more payments (with a "payment" including, without limitation, the
vesting of an option or other non-cash benefit or property) pursuant to any
plan, agreement or arrangement of Xxxxxx (together, "Severance Payments") which
are or become subject to the tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code")(or any similar tax that may be imposed)
(the "Excise Taxes"), and such Severance Payments are equal to or exceed 120% of
the Safe Harbor Amount (as defined below), Xxxxxx will pay to Executive an
additional amount ("Gross-Up Payment") such that, after the payment by Executive
of all taxes (including without limitation all income and employment tax and
Excise Tax and treating as a tax the lost tax benefit resulting from the
disallowance of any deduction of Executive by virtue of the inclusion of the
Gross-Up Payment in Executive's adjusted gross income), and interest and
penalties with respect to such taxes, imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Taxes.
If the Severance Payments exceed, but are less than 120%, of the Safe Harbor
Amount, the Severance Payments shall be reduced to the Safe Harbor Amount. "Safe
Harbor Amount" shall mean 300% of the "base amount" as determined in accordance
with Section 280G(b)(3) of the Code.
For purposes of determining whether any of the Severance Payments will be
subject to the Excise Tax and the amount of such Excise Tax:
(i) The Severance Payments shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of
the Code, and all "excess parachute payments" within
the meaning of Section 280G(b)(1) of the Code shall be
treated as subject to the Excise Tax, unless, and
except to the extent that, in the written opinion of
independent compensation consultants, counsel or
auditors of nationally recognized standing
("Independent Advisors") selected by Xxxxxx and
reasonably acceptable to Executive, the Severance
Payments (in whole or in part) do not constitute
parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable
compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code in excess of
the base amount within the meaning of Section
280G(b)(3) of the Code or are otherwise not subject to
the Excise Tax;
(ii) The amount of the Severance Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A)
the total amount of the Severance Payments or (B) the total
amount of excess parachute payments within the meaning of
Section 280G(b)(1) of the Code (after applying clause (i)
above); and
(iii) The value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Independent Advisors in
accordance with the principles of Sections 280G(d)(3) and (4)
of the Code.
For purposes of determining the amount of the Gross-Up Payment,
Executive shall be deemed (A) to pay federal income taxes at the highest
marginal rate of federal income taxation for the calendar year in which the
Gross-Up Payment is to be made; (B) to pay any applicable state and local income
taxes at the highest marginal rate of taxation for the calendar year in which
the Gross-Up Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes if paid in
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such year (determined without regard to limitations on deductions based upon the
amount of Executive's adjusted gross income); and (C) to have otherwise
allowable deductions for federal, state, and local income tax purposes at least
equal to those disallowed because of the inclusion of the Gross-Up Payment in
Executive's adjusted gross income. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder
at the time the Gross-Up Payment is made, Executive shall repay to Xxxxxx at the
time that the amount of such reduction in Excise Tax is finally determined (but,
if previously paid to the taxing authorities, not prior to the time the amount
of such reduction is refunded to Executive or otherwise realized as a benefit by
Executive) the portion of the Gross-Up Payment that would not have been paid if
such Excise Tax had been applied in initially calculating the Gross-Up Payment,
plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder at the time the Gross-Up Payment
is made (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), Xxxxxx shall make an
additional Gross-Up Payment in respect of such excess (plus any interest and
penalties payable with respect to such excess) at the time that the amount of
such excess is finally determined.
The Gross-Up Payment provided for above shall be paid on the 30th
day (or such earlier date as the Excise Tax becomes due and payable to the
taxing authorities) after it has been determined that the Severance Payments (or
any portion thereof) are subject to the Excise Tax; provided, however, that if
the amount of such Gross-Up Payment or portion thereof cannot be finally
determined on or before such day, Xxxxxx shall pay to Executive on such day an
estimate, as determined by the Independent Advisors, of the minimum amount of
such payments and shall pay the remainder of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as
the amount thereof can be determined. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by Xxxxxx to Executive, payable on the fifth
day after demand by Xxxxxx (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code). If more than one Gross-Up Payment is made,
the amount of each Gross-Up Payment shall be computed so as not to duplicate any
prior Gross-Up Payment. Xxxxxx shall have the right to control all proceedings
with the Internal Revenue Service that may arise in connection with the
determination and assessment of any Excise Tax and, at its sole option, Xxxxxx
may pursue or forego any and all administrative appeals, proceedings, hearings,
and conferences with any taxing authority in respect of such Excise Tax
(including any interest or penalties thereon); provided, however, that Xxxxxx'x
control over any such proceedings shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder, and Executive shall be
entitled to settle or contest any other issue raised by the Internal Revenue
Service or any other taxing authority. Executive shall cooperate with Xxxxxx in
any proceedings relating to the determination and assessment of any Excise Tax
and shall not take any position or action that would materially increase the
amount of any Gross-Up Payment hereunder.
18. Effect of Employment Agreement on Other Benefits.
Except as specifically provided in this Employment Agreement, the
existence of this Employment Agreement shall not be interpreted to preclude,
prohibit or restrict Executive's participation in any other employee benefit or
other plans or programs in which he currently participates.
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19. Assignability; Binding Nature.
This Employment Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors, heirs (in the case of
Executive) and permitted assigns. No rights or obligations of Xxxxxx under this
Employment Agreement may be assigned or transferred by Xxxxxx except that such
rights or obligations may be assigned or transferred in connection with the sale
or transfer of all or substantially all of the assets of Xxxxxx, provided that
the assignee or transferee is the successor to all or substantially all of the
assets of Xxxxxx and such assignee or transferee assumes the liabilities,
obligations and duties of Xxxxxx, as contained in this Employment Agreement,
either contractually or as a matter of law. Xxxxxx further agrees that, in the
event of a sale or transfer of assets as described in the preceding sentence, it
shall take whatever action it legally can in order to cause such assignee or
transferee to expressly assume the liabilities, obligations and duties of Xxxxxx
hereunder. No rights or obligations of Executive under this Employment Agreement
may be assigned or transferred by Executive other than his rights to
compensation and benefits, which may be transferred only by will or operation of
law, except as provided in Section 25 below.
20. Representation.
Xxxxxx represents and warrants that it is fully authorized and
empowered to enter into this Employment Agreement and that the performance of
its obligations under this Employment Agreement will not violate any agreement
between it and any other person, firm or organization.
21. Conflict between Agreements.
Executive is party to an agreement dated the date of this Agreement,
which governs Executive's employment as Vice Chairman of Xxxxxx. In the event
that any conflict exists between the aforementioned agreement and this
Agreement, this Agreement shall control, provided that if a Change of Control of
Xxxxxx occurs prior to October 1, 1999,
22. Amendment or Waiver.
No provision in this Agreement may be amended unless such amendment
is agreed to in writing and signed by Executive and an authorized officer of
Xxxxxx. Except as set forth herein, no delay or omission to exercise any right,
power or remedy accruing to any Party shall impair any such right, power or
remedy or shall be construed to be a waiver of or an acquiescence to any breach
hereof. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by Executive or an authorized officer of Xxxxxx, as the case may be.
23. Severability.
In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, in whole or in
part, the remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect to the fullest extent permitted by law.
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24. Survivorship.
The respective rights and obligations of the Parties hereunder shall
survive any termination of Executive's employment to the extent necessary to the
intended preservation of such rights and obligations.
25. Beneficiaries/References.
Executive shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving Xxxxxx written notice thereof. In the event of Executive's death or a
judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
26. Notices.
Any notice given to a Party shall be in writing and shall be deemed
to have been given when delivered personally or sent by certified or registered
mail, postage prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed address as such
Party may subsequently give such notice of:
If to Turner: The Xxxxxx Corporation
Attention: Corporate Secretary
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
If to Executive: Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxx 00000
27. Governing Law/Jurisdiction.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of Delaware without reference to principles of conflict
of laws. Subject to Section 15, Xxxxxx and Executive hereby consent to the
jurisdiction of any or all of the following courts for purposes of resolving any
dispute under this Agreement: (i) the United States District Court for Delaware
or (ii) any of the courts of the State of Delaware. Xxxxxx and Executive further
agree that any service of process or notice requirements in any such proceeding
shall be satisfied if the rules of such court relating thereto have been
substantially satisfied. Xxxxxx and Executive hereby waive, to the fullest
extent permitted by applicable law, any objection which it or he may now or
hereafter have to such jurisdiction and any defense of inconvenient forum.
28. Headings.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
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29. Counterparts.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
THE XXXXXX CORPORATION
By: /s/ E.T. Gravette, Jr.
-------------------------------------------
Name: E. T. Gravette, Jr.
Title: Chairman & Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxx
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EXHIBIT A
Defined Terms
(a) "Approved Early Retirement" shall have the meaning set forth in Section
10(g).
(b) "Base Salary" shall have the meaning set forth in Section 3.
(c) "Board" shall have the meaning set forth in Section 2(a).
(d) "Cause" shall have the meaning set forth in Section 10(b).
(e) "Change of Control" shall have the meaning set forth in Section 10(c).
(f) "Code" shall have the meaning set forth in Section 17.
(g) "Commencement Date" shall have the meaning set forth in Section 8(a).
(h) "Committee" shall have the meaning set forth in Section 3.
(i) "Competitor" or "Competition" shall have the meaning set forth in Section
12(a).
(j) "Confidential Information" shall have the meaning set forth in Section
11(c).
(k) "Disability" shall have the meaning set forth in Section 8(a).
(l) "Effective Date" shall have the meaning set forth in Section 1.
(m) "Excise Taxes" shall have the meaning set forth in Section 17.
(n) "Good Reason" shall have the meaning set forth in Section 10(c).
(o) "Gross-Up Payment" shall have the meaning set forth in Section 17.
(p) "Independent Advisors" shall have the meaning set forth in Section 17(i).
(q) "Normal Retirement" shall have the meaning set forth in Section 10(f).
(r) "Original Term of Employment" shall have the meaning set forth in Section
1.
(s) "Proceeding" shall have the meaning set forth in Section 16(a).
(t) "Renewal Term" shall have the meaning set forth in Section 1.
(u) "Restriction Period" shall have the meaning set forth in Section 12(b).
(v) "Safe Harbor Amount" shall have the meaning set forth in Section 17.
(w) "Severance Payments shall have the meaning set forth in Section 17.
(x) "Severance Period" shall have the meaning set forth in Section 10(c)(ii),
except as provided otherwise in Section 10(e).
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(y) "Stock Options" shall have the meaning set forth in Section 5(a).
(z) "Subsidiary" shall have the meaning set forth in Section 11(d).
(aa) "Term of Employment" shall have the meaning set forth in Section 1.
(bb) "Termination Date" shall have the meaning set forth in Section 10(a).
(cc) "Termination Without Cause" shall have the meaning set forth in Section
10(c).
