Exhibit 10.2
CENTENNIAL TECHNOLOGIES, INC.
EXECUTIVE RETENTION AGREEMENT
XXXXXXX X. XXXXXXXX
CENTENNIAL TECHNOLOGIES, INC.
EXECUTIVE RETENTION AGREEMENT
THIS EXECUTIVE RETENTION AGREEMENT by and between Centennial
Technologies, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxxxx (the "Executive") is made as of September 13, 1999 (the "Effective
Date").
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions
which it may raise among key personnel, may result in the departure or
distraction of key personnel to the detriment of the Company and its
stockholders, and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to reinforce and encourage the
continued employment and dedication of the Company's key personnel without
distraction from the possibility of a change in control of the Company and
related events and circumstances.
NOW, THEREFORE, as an inducement for and in consideration of the
Executive remaining in its employ, the Company agrees that the Executive shall
receive the severance benefits set forth in this Agreement in the event the
Executive's employment with the Company is terminated under the circumstances
described below subsequent to a Change in Control (as defined in Section 1.1).
1. KEY DEFINITIONS.
As used herein, the following terms shall have the following respective
meanings:
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1.1 "CHANGE IN CONTROL" means an event or occurrence set forth
in any one or more of subsections (a) through (d) below (including an event or
occurrence that constitutes a Change in Control under one of such subsections
but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 30% or more of either (i) the
then-outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the
then-outstanding securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
PROVIDED, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change in Control: (i) any acquisition
directly from the Company (excluding an acquisition pursuant to the exercise,
conversion or exchange of any security exercisable for, convertible into or
exchangeable for common stock or voting securities of the Company, unless the
Person exercising, converting or exchanging such security acquired such
security directly from the Company or an underwriter or agent of the
Company), (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (iv) any acquisition
by any corporation pursuant to a transaction which complies with clauses (i)
and (ii) of subsection (c) of this Section 1.1; or
(b) such time as the Continuing Directors (as
defined below) do not constitute a majority of the Board (or, if applicable,
the Board of Directors of a successor corporation to the Company), where the
term "Continuing Director" means at any date a member of the Board (i) who
was a member of the Board on the date of the execution of this Agreement or
(ii) who was nominated or elected subsequent to such date by at least a
majority of the directors who were Continuing Directors at the time of such
nomination or election or whose election to the Board was recommended or
endorsed by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election; PROVIDED, HOWEVER, that
there shall be excluded from this clause (ii) any individual whose initial
assumption of office occurred as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual
or threatened solicitation of proxies or consents, by or on behalf of a
person other than the Board; or
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(c) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share exchange involving the
Company or a sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), unless, immediately
following such Business Combination, each of the following two conditions is
satisfied: (i) all or substantially all of the individuals and entities who
were the beneficial owners of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 60% of the
then-outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of
directors, respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a corporation
which as a result of such transaction owns the Company or substantially all
of the Company's assets either directly or through one or more subsidiaries)
(such resulting or acquiring corporation is referred to herein as the
"Acquiring Corporation") in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, respectively;
and (ii) no Person (excluding the Acquiring Corporation or any employee
benefit plan (or related trust) maintained or sponsored by the Company or by
the Acquiring Corporation) beneficially owns, directly or indirectly, 20% or
more of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding
securities of such corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed prior to the
Business Combination); or
(d) approval by the stockholders of the Company of
a complete liquidation or dissolution of the Company.
1.2 "CHANGE IN CONTROL DATE" means the first date during the
Term (as defined in Section 2) on which a Change in Control occurs. Anything in
this Agreement to the contrary notwithstanding, if (a) a Change in Control
occurs, (b) the Executive's employment with the Company is terminated prior to
the date on which the Change in Control occurs, and (c) it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with or in anticipation
of a Change in Control, then for all purposes of this Agreement the "Change in
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
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1.3 "CAUSE" means:
(a) the Executive's willful and continued failure
substantially to perform his reasonable assigned duties as an officer of the
Company (other than any such failure resulting from incapacity due to
physical or mental illness or any failure after the Executive gives notice of
termination for Good Reason), which failure is not cured within 30 days after
a written demand for substantial performance is received by the Executive
from the Board of Directors of the Company which specifically identifies the
manner in which the Board of Directors believes the Executive has not
substantially performed the Executive's duties; or
(b) the Executive's willful engagement in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company.
For purposes of this Section 1.3, no act or failure to act by the
Executive shall be considered "willful" unless it is done, or omitted to be
done, in bad faith and without reasonable belief that the Executive's action or
omission was in the best interests of the Company.
1.4 "GOOD REASON" means the occurrence, without the
Executive's written consent, of any of the events or circumstances set forth in
clauses (a) through (g) below. Notwithstanding the occurrence of any such event
or circumstance, such occurrence shall not be deemed to constitute Good Reason
if, prior to the Date of Termination specified in the Notice of Termination
(each as defined in Section 3.2(a)) given by the Executive in respect thereof,
such event or circumstance has been fully corrected and the Executive has been
reasonably compensated for any losses or damages resulting therefrom (provided
that such right of correction by the Company shall only apply to the first
Notice of Termination for Good Reason given by the Executive).
(a) the assignment to the Executive of duties
inconsistent in any material respect with the Executive's position (including
status, offices, titles and reporting requirements), authority or
responsibilities in effect immediately prior to the earliest to occur of (i)
the Change in Control Date, (ii) the date of the execution by the Company of
the initial written agreement or instrument providing for the Change in
Control or (iii) the date of the adoption by the Board of Directors of a
resolution providing for the Change in Control (with the earliest to occur of
such dates referred to herein as the "Measurement Date"), or any other action
or omission by the Company which results in a diminution in such position,
authority or responsibilities;
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(b) a reduction in the Executive's annual base
salary as in effect on the Measurement Date or as the same was or may be
increased from time to time;
(c) the failure by the Company to (i) continue in
effect any material compensation or benefit plan or program (including
without limitation any life insurance, medical, health and accident or
disability plan and any vacation program or policy) (a "Benefit Plan") in
which the Executive participates or which is applicable to the Executive
immediately prior to the Measurement Date, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made with
respect to such plan or program, (ii) continue the Executive's participation
therein (or in such substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits provided and the
level of the Executive's participation relative to other participants, than
the basis existing immediately prior to the Measurement Date or (iii) award
cash bonuses to the Executive in amounts and in a manner substantially
consistent with past practice in light of the Company's financial performance;
(d) a change by the Company in the location at
which the Executive performs his principal duties for the Company to a new
location that is both (i) outside a radius of 35 miles from the Executive's
principal residence immediately prior to the Measurement Date and (ii) more
than 20 miles from the location at which the Executive performed his
principal duties for the Company immediately prior to the Measurement Date;
or a requirement by the Company that the Executive travel on Company business
to a substantially greater extent than required immediately prior to the
Measurement Date;
(e) the failure of the Company to obtain the
agreement, in a form reasonably satisfactory to the Executive, from any
successor to the Company to assume and agree to perform this Agreement, as
required by Section 6.1;
(f) a purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 3.2(a), which purported termination
shall not be effective for purposes of this Agreement; or
(g) any failure of the Company to pay or provide
to the Executive any portion of the Executive's compensation or benefits due
under any
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Benefit Plan within seven days of the date such compensation or benefits are
due, or any material breach by the Company of any employment agreement with the
Executive.
In addition, the termination of employment by the Executive for any
reason or no reason during the 30-day period beginning on the first anniversary
of the Change in Control Date shall be deemed to be termination for Good Reason
for all purposes under this Agreement.
For purposes of this Agreement, any good faith determination of "Good
Reason" made by the Executive shall be conclusive, binding and final. The
Executive's right to terminate his employment for Good Reason shall not be
affected by his incapacity due to physical or mental illness.
1.5 "DISABILITY" means the Executive's absence from the
full-time performance of the Executive's duties with the Company for 180
consecutive calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative.
2. TERM OF AGREEMENT. This Agreement, and all rights and obligations of
the parties hereunder, shall take effect upon the Effective Date and shall
expire upon the first to occur of (a) the expiration of the Term (as defined
below) if a Change in Control has not occurred during the Term, (b) the date 24
months after the Change in Control Date, if the Executive is still employed by
the Company as of such later date, or (c) the fulfillment by the Company of all
of its obligations under Sections 4 and 5.2 and 5.3 if the Executive's
employment with the Company terminates within 24 months following the Change in
Control Date. "Term" shall mean the period commencing as of the Effective Date
and continuing in effect through March 31, 2001; PROVIDED, however, that
commencing on April 1, 2001 and each April 1 thereafter, the Term shall be
automatically extended for one additional year unless, not later than 90 days
prior to the scheduled expiration of the Term (or any extension thereof), the
Company shall have given the Executive written notice that the Term will not be
extended.
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3. EMPLOYMENT STATUS; TERMINATION FOLLOWING CHANGE IN CONTROL.
3.1 NOT AN EMPLOYMENT CONTRACT. The Executive acknowledges
that this Agreement does not constitute a contract of employment or impose on
the Company any obligation to retain the Executive as an employee and that this
Agreement does not prevent the Executive from terminating employment at any
time. If the Executive's employment with the Company terminates for any reason
and subsequently a Change in Control shall occur, the Executive shall not be
entitled to any benefits hereunder except as otherwise provided pursuant to
Section 1.2.
3.2 TERMINATION OF EMPLOYMENT.
(a) If the Change in Control Date occurs during
the Term, any termination of the Executive's employment by the Company or by
the Executive within 24 months following the Change in Control Date (other
than due to the death of the Executive) shall be communicated by a written
notice to the other party hereto (the "Notice of Termination"), given in
accordance with Section 7. Any Notice of Termination shall: (i) indicate the
specific termination provision (if any) of this Agreement relied upon by the
party giving such notice, (ii) to the extent applicable, set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated
and (iii) specify the Date of Termination (as defined below). The effective
date of an employment termination (the "Date of Termination") shall be the
close of business on the date specified in the Notice of Termination (which
date may not be less than 15 days or more than 120 days after the date of
delivery of such Notice of Termination), in the case of a termination other
than one due to the Executive's death, or the date of the Executive's death,
as the case may be.
(b) The failure by the Executive or the Company to
set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the
Executive or the Company, respectively, from asserting any such fact or
circumstance in enforcing the Executive's or the Company's right hereunder.
(c) Any Notice of Termination for Cause given by the
Company must be given within 90 days of the occurrence of the event(s) or
circumstance(s) which constitute(s) Cause. Prior to any Notice of Termination
for Cause being given (and prior to any termination for Cause being effective),
the Executive shall be entitled to a
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hearing before the Board of Directors of the Company at which he may, at his
election, be represented by counsel and at which he shall have a reasonable
opportunity to be heard. Such hearing shall be held on not less than 15 days
prior written notice to the Executive stating the Board of Directors' intention
to terminate the Executive for Cause and stating in detail the particular
event(s) or circumstance(s) which the Board of Directors believes constitutes
Cause for termination. Any such Notice of Termination for Cause must be approved
by an affirmative vote of two-thirds of the members of the Board of Directors.
(d) Any Notice of Termination for Good Reason
given by the Executive must be given within 90 days of the occurrence of the
event(s) or circumstance(s) which constitute(s) Good Reason.
4. BENEFITS TO EXECUTIVE.
4.1 STOCK ACCELERATION. If the Change in Control Date occurs
during the Term, then, effective upon the Change in Control Date, (a) each
outstanding option to purchase shares of Common Stock of the Company held by the
Executive, not otherwise fully exercisable or automatically exercisable in full
upon a Change in Control, shall become immediately exercisable in full, (b) each
outstanding restricted stock award shall be deemed to be fully vested and no
longer subject to a right of repurchase by the Company and (c) notwithstanding
any provision in any applicable option agreement to the contrary, each such
option shall continue to be exercisable by the Executive (to the extent such
option was exercisable on the Date of Termination) for a period of six months
following the Date of Termination.
4.2 COMPENSATION. If the Change in Control Date occurs during
the Term and the Executive's employment with the Company terminates within 24
months following the Change in Control Date, the Executive shall be entitled to
the following benefits:
(a) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON.
If the Executive's employment with the Company is terminated by the Company
(other than for Cause, Disability or Death) or by the Executive for Good
Reason within 24 months following the Change in Control Date, then the
Executive shall be entitled to the following benefits:
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(i) the Company shall pay to the
Executive in a lump sum in cash within 30 days after the Date of Termination
the aggregate of the following amounts:
(1) the sum of (A) the
Executive's base salary through the Date of Termination, (B) the product of
(x) the annual bonus paid or payable (including any bonus or portion thereof
which has been earned but deferred) for the most recently completed fiscal
year and (y) a fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination, and the denominator of
which is 365 and (C) the amount of any compensation previously deferred by
the Executive (together with any accrued interest or earnings thereon) and
any accrued vacation or compensatory time off pay, in each case to the extent
not previously paid (the sum of the amounts described in clauses (A), (B),
and (C) shall be hereinafter referred to as the "Accrued Obligations"); and
(2) the amount equal to (A) two
and one-half multiplied by (B) the sum of (x) the Executive's highest annual
base salary from the Company during the five-year period prior to the Change
in Control Date and (y) the Executive's highest annual bonus from the Company
during the five-year period prior to the Change in Control Date.
(ii) for 30 months after the Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue to
provide benefits to the Executive and the Executive's family at least equal to
those which would have been provided to them if the Executive's employment had
not been terminated, in accordance with the applicable Benefit Plans in effect
on the Measurement Date or, if more favorable to the Executive and his family,
in effect generally at any time thereafter with respect to other peer executives
of the Company and its affiliated companies; PROVIDED, however, that if the
Executive becomes reemployed with another employer and is eligible to receive a
particular type of benefits (e.g., health insurance benefits) from such employer
on terms at least as favorable to the Executive and his family as those being
provided by the Company, then the Company shall no longer be required to provide
those particular benefits to the Executive and his family;
(iii) to the extent not previously paid or
provided, the Company shall timely pay or provide to the Executive outplacement
assistance commensurate with the Executive's position as well as any other
amounts or benefits required to be paid or provided or which the Executive is
eligible to receive following
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the Executive's termination of employment under any plan, program, policy,
practice, contract or agreement of the Company and its affiliated companies
(such other amounts and benefits shall be hereinafter referred to as the "Other
Benefits"); and
(iv) for purposes of determining eligibility
(but not the time of commencement of benefits) of the Executive for retiree
benefits to which the Executive is entitled, the Executive shall be considered
to have remained employed by the Company until 30 months after the Date of
Termination.
(b) RESIGNATION WITHOUT GOOD REASON; TERMINATION
FOR DEATH OR DISABILITY. If the Executive voluntarily terminates his
employment with the Company within 24 months following the Change in Control
Date, excluding a termination for Good Reason, or if the Executive's
employment with the Company is terminated by reason of the Executive's death
or Disability within 24 months following the Change in Control Date, then the
Company shall (i) pay the Executive (or his estate, if applicable), in a lump
sum in cash within 30 days after the Date of Termination, the Accrued
Obligations and (ii) timely pay or provide to the Executive the Other
Benefits.
(c) TERMINATION FOR CAUSE. If the Company
terminates the Executive's employment with the Company for Cause within 24
months following the Change in Control Date, then the Company shall (i) pay
the Executive, in a lump sum in cash within 30 days after the Date of
Termination, the sum of (A) the Executive's annual base salary through the
Date of Termination and (B) the amount of any compensation previously
deferred by the Executive, in each case to the extent not previously paid,
and (ii) timely pay or provide to the Executive the Other Benefits.
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4.3 TAXES.
(a) In the event that the Company undergoes a
"Change in Ownership or Control" (as defined below), the Company shall,
within 30 days after each date on which the Executive becomes entitled to
receive (whether or not then due) a Contingent Compensation Payment (as
defined below) relating to such Change in Ownership or Control, determine and
notify the Executive (with reasonable detail regarding the basis for its
determinations) (i) which of the payments or benefits due to the Executive
(under this Agreement or otherwise) following such Change in Ownership or
Control constitute Contingent Compensation Payments, (ii) the amount, if any,
of the excise tax (the "Excise Tax") payable pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), by the Executive with
respect to such Contingent Compensation Payment and (iii) the amount of the
Gross-Up Payment (as defined below) due to the Executive with respect to such
Contingent Compensation Payment. Within 30 days after delivery of such notice
to the Executive, the Executive shall deliver a response to the Company (the
"Executive Response") stating either (A) that he agrees with the Company's
determination pursuant to the preceding sentence or (B) that he disagrees
with such determination, in which case he shall indicate which payment and/or
benefits should be characterized as a Contingent Compensation Payment, the
amount of the Excise Tax with respect to such Contingent Compensation Payment
and the amount of the Gross-Up Payment due to the Executive with respect to
such Contingent Compensation Payment. The amount and characterization of any
item in the Executive Response shall be final; provided, however, that in the
event that the Executive fails to deliver an Executive Response on or before
the required date, the Company's initial determination shall be final. Within
90 days after the due date of each Contingent Compensation Payment to the
Executive, the Company shall pay to the Executive, in cash, the Gross-Up
Payment with respect to such Contingent Compensation Payment, in the amount
determined pursuant to this Section 4.3(a).
(b) For purposes of this Section 4.3, the following
terms shall have the following
respective meanings:
(i) "Change in Ownership or Control"
shall mean a change in the ownership or effective control of the Company or
in the ownership of a substantial portion of the assets of the Company
determined in accordance with Section 280G(b)(2) of the Code.
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(ii) "Contingent Compensation Payment" shall
mean any payment (or benefit) in the nature of compensation that is made or
supplied (under this Agreement or otherwise) to a "disqualified individual" (as
defined in Section 280G(c) of the Code) and that is contingent (within the
meaning of Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or
Control of the Company.
(iii) "Gross-Up Payment" shall mean an
amount equal to the sum of (i) the amount of the Excise Tax payable with respect
to a Contingent Compensation Payment and (ii) the amount necessary to pay all
additional taxes imposed on (or economically borne by) the Executive (including
the Excise Taxes, state and federal income taxes and all applicable withholding
taxes) attributable to the receipt of such Gross-Up Payment. For purposes of the
preceding sentence, all taxes attributable to the receipt of the Gross-Up
Payment shall be computed assuming the application of the maximum tax rates
provided by law.
4.4 MITIGATION. The Executive shall not be required to
mitigate the amount of any payment or benefits provided for in this Section 4 by
seeking other employment or otherwise. Further, except as provided in Section
4.2(a)(ii), the amount of any payment or benefits provided for in this Section 4
shall not be reduced by any compensation earned by the Executive as a result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
5. DISPUTES.
5.1 SETTLEMENT OF DISPUTES; ARBITRATION. All claims by the
Executive for benefits under this Agreement shall be directed to and determined
by the Board of Directors of the Company and shall be in writing. Any denial by
the Board of Directors of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The
Board of Directors shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim. Any further dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
5.2 EXPENSES. The Company agrees to pay as incurred, to the
full extent permitted by law, all legal, accounting and other fees and expenses
which the
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Executive may reasonably incur as a result of any claim or contest (regardless
of the outcome thereof) by the Company, the Executive or others regarding the
validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive regarding the amount of any payment or benefits
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Code.
5.3 COMPENSATION DURING A DISPUTE. If the Change in Control
Date occurs during the Term and the Executive's employment with the Company
terminates within 24 months following the Change in Control Date, and the right
of the Executive to receive benefits under Section 4 (or the amount or nature of
the benefits to which [he is entitled to receive) are the subject of a dispute
between the Company and the Executive, the Company shall continue (a) to pay to
the Executive his base salary in effect as of the Measurement Date and (b) to
provide benefits to the Executive and the Executive's family at least equal to
those which would have been provided to them, if the Executive's employment had
not been terminated, in accordance with the applicable Benefit Plans in effect
on the Measurement Date, until such dispute is resolved either by mutual written
agreement of the parties or by an arbitrator's award pursuant to Section 5.1.
Following the resolution of such dispute, the sum of the payments made to the
Executive under clause (a) of this Section 5.3 shall be deducted from any cash
payment which the Executive is entitled to receive pursuant to Section 4; and if
such sum exceeds the amount of the cash payment which the Executive is entitled
to receive pursuant to Section 4, the excess of such sum over the amount of such
payment shall be repaid (without interest) by the Executive to the Company
within 60 days of the resolution of such dispute.
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6. SUCCESSORS.
6.1 SUCCESSOR TO COMPANY. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company
expressly to assume and agree to perform this Agreement to the same extent that
the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain an assumption of this Agreement at or
prior to the effectiveness of any succession shall be a breach of this Agreement
and shall constitute Good Reason if the Executive elects to terminate
employment, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
defined above and any successor to its business or assets as aforesaid which
assumes and agrees to perform this Agreement, by operation of law or otherwise.
6.2 SUCCESSOR TO EXECUTIVE. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to the Executive or his family hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Executive's estate.
7. NOTICE. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) prepaid via a reputable
nationwide overnight courier service, in each case addressed to the Company, at
0 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, and to the Executive at 000
Xxxxxxxxx Xxx., Xxxxxx, XX 00000 (or to such other address as either the Company
or the Executive may have furnished to the other in writing in accordance
herewith). Any such notice, instruction or communication shall be deemed to have
been delivered five business days after it is sent by registered or certified
mail, return receipt requested, postage prepaid, or one business day after it is
sent via a reputable nationwide overnight courier service. Either party may give
any notice, instruction or other communication hereunder using any other means,
but no such notice, instruction or other communication shall be deemed to
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have been duly delivered unless and until it actually is received by the party
for whom it is intended.
8. MISCELLANEOUS.
8.1 EMPLOYMENT BY SUBSIDIARY. For purposes of this Agreement,
the Executive's employment with the Company shall not be deemed to have
terminated solely as a result of the Executive continuing to be employed by a
wholly-owned subsidiary of the Company.
8.2 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
8.3 INJUNCTIVE RELIEF. The Company and the Executive agree
that any breach of this Agreement by the Company is likely to cause the
Executive substantial and irrevocable damage and therefore, in the event of any
such breach, in addition to such other remedies which may be available, the
Executive shall have the right to specific performance and injunctive relief.
8.4 GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts, without regard to conflicts of law principles.
8.5 WAIVERS. No waiver by the Executive at any time of any
breach of, or compliance with, any provision of this Agreement to be performed
by the Company shall be deemed a waiver of that or any other provision at any
subsequent time.
8.6 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but both of which
together shall constitute one and the same instrument.
8.7 TAX WITHHOLDING. Any payments provided for hereunder shall
be paid net of any applicable tax withholding required under federal, state or
local law.
8.8 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any
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party hereto; and any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and cancelled.
8.9 AMENDMENTS. This Agreement may be amended or modified only
by a written instrument executed by both the Company and the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first set forth above.
CENTENNIAL TECHNOLOGIES, INC.
By:
---------------------------------
Title:
------------------------------
------------------------------------
[Executive Name]
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