Exhibit 10.23
CHANGE IN CONTROL SEVERANCE AGREEMENT
AGREEMENT made as of April 25th, 1997 between Polaroid Corporation
("Polaroid" or "Company") and Xxxxx X. Xxxxx (the "Executive").
Executive is a skilled and dedicated employee who has important
management responsibilities and talents which benefit Polaroid. Polaroid
believes that its best interests will be served if Executive is encouraged to
remain with Polaroid. Polaroid has determined that Executive's ability to
perform Executive's responsibilities and utilize Executive's talents for the
benefit of Polaroid, and Polaroid's ability to retain Executive as an employee,
will be significantly enhanced if Executive is provided with fair and reasonable
protection from the risks of a change in ownership or control of Polaroid.
Accordingly, Polaroid and Executive agree as follows:
1. DEFINED TERMS.
(a) "ANNUAL BONUS" shall mean the Executive's annual bonus paid
pursuant to the Company's annual bonus plan in effect at the
time (currently the Polaroid Incentive Plan for Executives).
Unless otherwise specifically provided, the Annual Bonus shall
be calculated assuming the Corporate target is reached and no
additional factors are considered to decrease the Executive's
award under the Plan.
(b) "ACQUIRING PERSON" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, is
the Beneficial Owner of 20% or more of the Stock then
outstanding, but does not include any Subsidiary of the
Company, any employee benefit plan of the Company or of any of
its Subsidiaries or any Person holding Stock for or pursuant
to the terms of any such employee benefit plan.
(c) "AFFILIATE" and "ASSOCIATE" when used with reference to any
Person, shall have the meaning given to such terms in Rule
12b-2 of the General Rules and Regulations under the Exchange
Act.
(d) "BASE SALARY" shall mean the annual rate of base salary
(disregarding any reduction in such rate that constitutes
Constructive Termination) as increased by the Board from time
to time.
(e) "BENEFICIAL OWNER" shall be a Person deemed to "beneficially
own," any securities:
(i) which such Person or any of such Person's Affiliates
or Associates beneficially owns, directly or
indirectly; or
(ii) which such Person or any of such Person's Affiliates
or Associates has:
(A) the right to acquire (whether such right is
exercisable immediately or only after the
passage of time) pursuant to any agreement,
arrangement or understanding (written or
oral), or upon the exercise of conversion
rights, exchange rights, warrants or
options, or otherwise; provided, however,
that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or
exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or
Associates until such tendered securities
are accepted for purchase or exchange
thereunder; or
(B) the right to vote pursuant to any agreement,
arrangement or understanding (written or
oral); provided however, that a Person shall
not be deemed the Beneficial Owner of, or to
beneficially own, any security if the
agreement, arrangement or understanding
(written or oral) to vote such security (1)
arises solely from a revocable proxy given
to such Person in response to a public proxy
or consent solicitation made pursuant to,
and in accordance with, the applicable rules
and regulations under the Exchange Act, and
(2) is not also then reportable on Schedule
13D (or any comparable or successor report)
under the Exchange Act; or,
(C) which are beneficially owned, directly or
indirectly, by any Person with which such
Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or
understanding (written or oral), for the
purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as
described above) or disposing of any
securities of the Company.
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(f) "BOARD" shall mean the Board of Directors of the Company.
(g) "BONUS" means the amount payable to the Executive under any
plan, or agreement offered by Polaroid.
(h) "CAUSE" means either of the following:
(i) Executive's willful malfeasance having a material
adverse effect on Polaroid; or
(ii) Executive's conviction of a felony;
PROVIDED, that any action or refusal by Executive shall not
constitute Cause if, in good faith, Executive believed such
action or refusal to be in, or not opposed to, the best
interests of Polaroid, or if Executive shall be entitled,
under applicable law or under an applicable Polaroid
Certificate of Incorporation or the Polaroid By-Laws, as they
may be amended or restated from time to time, to be
indemnified with respect to such action or refusal.
(i) "CHANGE IN CONTROL" shall mean:
(i) the date on which a change in control of the Company
occurs of a nature that would be required to be
reported (assuming that the Company's Stock was
registered under the Exchange Act) in response to an
item (currently item 6(e)) of Schedule 14A of
Regulation 14A promulgated under the Exchange Act or
an item (currently Item l(a)) of Form 8-K under the
Exchange Act;
(ii) the date on which there is an Acquiring Person and a
change in the composition of the Board of the Company
within two years after the Share Acquisition Date
such that the individuals who constitute the Board
prior to the Share Acquisition Date shall cease for
any reason to constitute at least a majority of the
Board;
(iii) any day on or after the Share Acquisition Date when
directly or indirectly, any of the transactions
specified in the following clauses occurs:
(A) the Company shall consolidate with, or merge
with and into, any other Person;
(B) any Person shall merge with and into the
Company; or
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(C) the Company shall sell, lease, exchange or
otherwise transfer or dispose of (or one or
more of its Subsidiaries shall sell, lease,
exchange or otherwise transfer or dispose
of), in one or more transactions, the major
part of the assets of the Company and its
Subsidiaries (taken as a whole) to any other
Person or Persons;
(iv) the date when a Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan
of the Company or any of its Subsidiaries or any
Person holding Stock for or pursuant to the terms of
any such employee benefit plan) alone or together
with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 30% or more of the
Stock then outstanding;
(v) the date on which the stockholders of the Company
approve a merger or consolidation of the Company with
any other corporation other than:
(A) a merger or consolidation which would result
in voting securities of the Company
outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into
voting securities of the surviving or parent
entity) 50% or more of the combined voting
power of the voting securities of the
Company or such surviving or parent entity
outstanding immediately after such merger or
consolidation, or
(B) a merger or consolidation effected to
implement a recapitalization of the Company
(or similar transaction) in which no Person
acquires 50% or more of the combined voting
power of the Company's then outstanding
securities; or
(vi) the date stockholders of the Company approve a plan
of complete liquidation of the Company or an
agreement for the sale or disposition by the Company
of all or substantially all of the Company's assets
(or any transaction having a similar effect).
(j) "CODE" means the Internal Revenue Code of 1986, as amended.
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(k) "CONFIDENTIAL INFORMATION" means non-public information
relating to the business plans, marketing plans, customers or
employees of Polaroid other than information the disclosure of
which cannot reasonably be expected to adversely affect the
business of Polaroid.
(l) "CONSTRUCTIVE TERMINATION" shall occur when the Executive
voluntarily terminates his employment with the Company or
retires after the occurrence of one or more of the following
events on or after the Change in Control:
(i) a reduction in Base Salary from the amount of Base
Salary on the day immediately preceding the Change in
Control;
(ii) the elimination of or reduction of any benefit under
any bonus, incentive or other employee benefit plan
in effect on the day immediately preceding the Change
in Control, without an economically equivalent
replacement, if Executive was a participant or member
of such plan on the day immediately preceding the
Change in Control;
(iii) the discontinuation of or any reduction in
Executive's participation or membership in any bonus,
incentive or other benefit plan in which Executive
was a participant or member on the day immediately
preceding the Change in Control, without an
economically equivalent replacement;
(iv) the reassignment of Executive without Executive's
consent from Executive's regular shift or regular
duties as they existed on the day immediately
preceding the Change in Control;
(v) the reassignment of Executive without Executive's
consent to a location more than thirty (30) miles
from Executive's regular workplace on the day
immediately preceding the Change in Control;
(vi) the reduction in Executive's job title or level in
effect on the day immediately preceding the Change in
Control;
(vii) the provision of significantly less favorable working
conditions than those provided on the day immediately
preceding the Change in Control; or
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(viii) a significant diminution in duties or
responsibilities or the reassignment of Executive to
duties which represent a position of lesser
responsibility than Executive's duties as they
existed on the day immediately preceding the Change
in Control.
(m) "DISABILITY" shall mean the Executive's disability within the
meaning of the Polaroid Long Term Disability Plan.
(n) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as in effect on the date in question.
(o) "PERSON" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization
or other entity.
(p) "SHARE ACQUISITION DATE" shall mean the first date any Person
shall become an Acquiring Person.
(q) "STOCK" shall mean the outstanding shares of Common Stock of
the Company and, for purposes of the Change in Control
provision, any other shares of capital stock of the Company
into which the Common Stock shall be reclassified or changed.
(r) "SUBSIDIARY" of the Company shall mean any corporation of
which the Company owns, directly or indirectly, more than 50%
of the Voting Stock.
(s) "TERMINATED" shall mean:
(i) termination by Polaroid without Cause at any time
within the two (2) years following a Change in
Control;
(ii) Executive's termination due to a Constructive
Termination at any time within the two (2)
years following a Change in Control; or
(iii) termination within three (3) months prior to a Change
of Control at the request of any individual or entity
acquiring ownership and control of Polaroid. If
Executive's employment with Polaroid is terminated
prior to a Change in Control at the request of
Acquiring Person, this Agreement shall become
effective upon the subsequent occurrence of a Change
in Control involving such Acquiring Person. In such
situation the Executive's Termination Date shall be
deemed to have occurred immediately following the
Change in Control, and therefore
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Executive shall be entitled to the benefits provided
in this Agreement.
(t) "TERMINATION DATE" shall mean the date on which Executive is
terminated.
(u) "VOTING STOCK" shall mean capital stock of any class or
classes having general voting power under ordinary
circumstances, in the absence of contingencies, to elect the
directors of a corporation.
2. EFFECTIVE DATE; TERM. This Agreement shall be effective immediately
prior to a Change in Control (the "Effective Date") and shall remain in
effect for two (2) years following such Change in Control, and such
additional time as may be necessary to give effect to the terms of the
Agreement.
3. CHANGE IN CONTROL BENEFITS. If Executive's employment with Polaroid is
Terminated, Executive shall be entitled to the following benefits:
(a) SEVERANCE BENEFITS. Within ten (10) business days after the
Termination Date, Polaroid shall pay Executive a lump sum
amount, in cash, equal to the greater of the severance benefit
Executive would otherwise be entitled to receive under the
Extended Severance Plan or:
(i) two (2) times the sum of:
(A) Executive's Base Salary; and
(B) Executive's Annual Bonus; and
(ii) Executive's Annual Bonus multiplied by a fraction,
the numerator of which shall equal the number of days
Executive was employed by Polaroid in the calendar
year in which the Termination Date occurs and the
denominator of which shall equal 365.
(b) CONTINUED WELFARE BENEFITS. Until the second anniversary of
the Termination Date, Executive shall be entitled to
participate in the Company's medical, dental, and life
insurance plans, at the highest level provided to Executive
during the period beginning immediately prior to the Change in
Control and ending on the Termination Date and at no greater
cost than the cost Executive was paying immediately prior to
Change in Control; PROVIDED, HOWEVER, that if Executive
becomes employed by a new employer, Executive's coverage under
the applicable Polaroid plans shall continue, but Executive's
coverage thereunder shall be
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secondary to (i.e., reduced by) any benefits provided under
like plans of such new employer.
(c) PAYMENT OF ACCRUED BUT UNPAID AMOUNTS. Within ten (10)
business days after the Termination Date, Polaroid shall pay
Executive:
(i) earned but unpaid compensation, including, without
limitation, any unpaid portion of Executive's Bonus
accrued with respect to the full calendar year ended
prior to the Termination Date; and
(ii) all compensation previously deferred by Executive on
a non-qualified basis but not yet paid.
(d) RETIREE-MEDICAL BENEFITS. If Executive is or would become
fifty-five (55) or older and Executive's age and service equal
sixty-five (65) and Executive has at least five (5) years of
service with the Company within two (2) years of Change in
Control, Executive is eligible for retiree medical benefits
(as such are determined immediately prior to Change in
Control). Executive is eligible to commence receiving such
retiree medical benefits based on the terms and conditions of
the applicable plans in effect immediately prior to the Change
in Control.
(e) SUPPLEMENTAL RETIREMENT AND PROFIT SHARING BENEFITS.
(i) On the Termination Date, Executive shall become
vested in the benefits provided under Polaroid's
non-qualified defined benefit pension plans or any
successor plans (the "Supplemental Plans").
(ii) Within ten (10) business days after the Termination
Date, Polaroid shall pay Executive a lump sum cash
amount equal to the present value of Executive's
accrued benefit under the Supplemental Plans. For
purposes of computing the lump sum present value of
Executive's accrued benefit under the Supplemental
Plans,
(A) Polaroid shall credit Executive with two (2)
years of plan participation and service and
two (2) years of age for all purposes
(including additional accruals and
eligibility for early retirement) over
Executive's actual years and fractional
years of plan participation and service and
age credited to Executive on the Termination
Date; and
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(B) Polaroid shall apply the present value (and
any other actuarial adjustments required by
this Agreement) using the applicable
actuarial assumptions set forth in the
Pension Plan. In determining Executive's
benefits under this paragraph (e)(B), the
terms of the Supplemental Plans as in effect
immediately prior to the Change in Control,
except as expressly modified in this
paragraph (e), shall govern.
(f) EFFECT ON EXISTING PLANS. All Change in Control provisions
applicable to Executive and contained in any plan, program,
agreement or arrangement maintained as of the date this
Agreement is signed (including, but not limited to, any stock
option, restricted stock or pension plan) shall remain in
effect through the date of a Change in Control, and for such
period thereafter as is necessary to carry out such provisions
and provide the benefits payable thereunder, and may not be
altered in a manner which adversely affects Executive without
Executive's prior written approval. This means that all awards
of options, performance shares or such other awards as may be
granted shall upon Change in Control be fully vested
consistent with the terms of these Agreements. Notwithstanding
the foregoing, no benefits shall be paid to Executive,
however, under the Polaroid Extended Severance Plan or any
other severance plan maintained generally for the employees of
Polaroid if Executive is eligible to receive severance
benefits under this Agreement.
(g) OUTPLACEMENT COUNSELING. Outplacement services will be
provided consistent with Polaroid's outplacement practices in
effect prior to the Change in Control.
4. MITIGATION. Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking
other employment or otherwise, and compensation earned from such
employment or otherwise shall not reduce the amounts otherwise payable
under this Agreement. No amounts payable under this Agreement shall be
subject to reduction or offset in respect of any claims which Polaroid
(or any other person or entity) may have against Executive unless
specifically referenced herein.
5. GROSS-UP.
(a) In the event it shall be determined that any payment, benefit
or distribution (or combination thereof) by Polaroid, or one
or more trusts established by Polaroid for the benefit of its
employees, to or for the benefit of Executive (whether paid or
payable or distributed or
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distributable pursuant to the terms of this Agreement, or
otherwise) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or
penalties are incurred by Executive with respect to such
excise tax (such excise tax, together with any such interest
and penalties, hereinafter collectively referred to as the
"Excise Tax"), Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such
that after payment by Executive of all taxes (including any
interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and the
Excise Tax imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
(b) Subject to the provisions of Section 5(c), all determinations
required to be made under this Section 5, including whether
and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by a nationally
recognized certified public accounting firm as may be
designated by Executive (the "Accounting Firm") which shall
provide detailed supporting calculations both to Polaroid and
Executive within fifteen (15) business days of the receipt of
notice from Executive that there has been a Payment, or such
earlier time as is requested by Polaroid. In the event that
the Accounting Firm is serving as accountant or auditor for an
individual, entity or group effecting the change in ownership
or effective control (within the meaning of Section 280G of
the Code), Executive shall appoint another nationally
recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as
the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by Polaroid. Any
Gross-Up Payment, as determined pursuant to this Section 5,
shall be paid by Polaroid to Executive within five (5)
business days after the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no
Excise Tax is payable by Executive, it shall so indicate to
Executive in writing. Any determination by the Accounting Firm
shall be binding upon Polaroid and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code
at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by Polaroid should have been made
("Underpayment"), consistent with the calculations required to
be made hereunder. In the
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event that Polaroid exhausts its remedies pursuant to Section
5(c) and Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by Polaroid to or for the
benefit of Executive.
(c) The Executive shall notify the Company in writing of any
written claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after the
Executive is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid (but the
Executive's failure to comply with this notice obligation
shall not eliminate his rights under this Section except to
the extent Polaroid's defense against the imposition of the
Excise Tax is actually prejudiced by any such failure). The
Executive shall not pay such claim prior to the expiration of
the thirty (30) day period following the date on which he
gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires
to contest such claim, the Executive shall:
(i) give Polaroid any information reasonably requested by
Polaroid relating to such claim;
(ii) take such action in connection with contesting such
claim as Polaroid shall reasonably request in writing
from time to time, including, without limitation,
accepting legal representation with respect to such
claim by an attorney reasonably selected by Polaroid;
(iii) cooperate with Polaroid in good faith in order to
effectively contest such claim; and
(iv) permit Polaroid to participate in any proceedings
relating to such claim;
PROVIDED, HOWEVER, that Polaroid shall bear and pay directly all costs
and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify
and hold Executive harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties
with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 5(c),
Polaroid
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shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forego any and
all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct Executive to pay
the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and Executive agrees to prosecute such
contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more
appellate courts, as Polaroid shall determine; PROVIDED,
HOWEVER, that if Polaroid directs Executive to pay such claim
and xxx for a refund, Polaroid shall advance the amount of
such payment to Executive, on an interest-free basis, and
shall indemnify and hold Executive harmless, on an after-tax
basis, from any Excise Tax or income tax (including interest
or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and PROVIDED, FURTHER, that if
Executive is required to extend the statute of limitations to
enable Polaroid to contest such claim, Executive may limit
this extension solely to such contested amount. Polaroid's
control of the contest 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, as the case
may be, any other issue raised by the Internal Revenue Service
or any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced by
Polaroid pursuant to Section 5(c), Executive receives any
refund with respect to such claim, Executive shall (subject to
Polaroid's complying with the requirements of Section 5(c))
promptly pay to Polaroid the amount of such refund (together
with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Executive of an
amount advanced by Polaroid pursuant to Section 5(c), a
determination is made that Executive shall not be entitled to
any refund with respect to such claim and Polaroid does not
notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty (30) days
after such determination, then such advance shall be forgiven
and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
6. TERMINATION FOR CAUSE. Nothing in this Agreement shall be construed to
prevent Polaroid from terminating Executive's employment for Cause. If
Executive is terminated for Cause, Polaroid shall have no obligation to
make any payments under this Agreement, except for payments that may
otherwise be
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payable under then existing employee benefit plans, programs and
arrangements of Polaroid.
7. INDEMNIFICATION; DIRECTOR'S AND OFFICER'S LIABILITY INSURANCE.
Executive shall, after the Termination Date, retain all rights to
indemnification under applicable law or under Polaroid Certificate of
Incorporation or the Polaroid By-Laws, as they may be amended or
restated from time to time. In addition, Polaroid shall maintain
Director's and Officer's liability insurance on behalf of Executive at
the better of the level in effect immediately prior to the Change in
Control or the Executive's Termination Date, for the two (2) year
period following the Termination Date, and throughout the period of any
applicable statute of limitations.
8. CONFIDENTIALITY. Without the prior written consent of the Company,
except to the extent required by an order of a court having competent
jurisdiction or under subpoena from an appropriate government agency,
the Executive shall comply with the Confidentiality Agreement he
executed when hired, and shall not disclose any trade secrets, customer
lists, drawings, designs, information regarding product development,
marketing plans, sales plans, manufacturing plans, management
organization information (including data and other information relating
to members of the Board and management), operating policies or manuals,
business plans, financial records or other financial, commercial,
business or technical information relating to the Company or any of its
subsidiaries or information designated as confidential or proprietary
that the Company or any of its Subsidiaries may receive belonging to
suppliers, customers or others who do business with the Company or any
of its subsidiaries (collectively, "Confidential Information") to any
third person unless such Confidential Information has been previously
disclosed to the public by the Company or is in the public domain
(other than by reason of Executive's breach of this Section 8).
9. DISPUTES. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts or, at the option of Executive, in the county
where Executive then resides, in accordance with the Rules of the
American Arbitration Association then in effect. Judgment may be
entered on an arbitrator's award relating to this Agreement in any
court having jurisdiction.
10. COSTS OF PROCEEDINGS. Polaroid shall pay all costs and expenses,
including attorneys' fees and disbursements, at least monthly, of
Executive in connection with any legal proceeding (including
arbitration), whether or not instituted by Polaroid or Executive,
relating to the interpretation or enforcement of any provision of this
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Agreement, except that if Executive instituted the proceeding and the
judge, arbitrator or other individual presiding over the proceeding
affirmatively finds that Executive instituted the proceeding in bad
faith, Executive shall pay all costs and expenses, including attorneys'
fees and disbursements, of Executive. Polaroid shall pay pre-judgment
interest on any money judgment obtained by Executive as a result of
such a proceeding, calculated at the prime rate of The Chase Manhattan
Bank (or its successors), as in effect from time to time, from the date
that payment should have been made to Executive under this Agreement.
11. ASSIGNMENT. Except as otherwise provided herein, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by Polaroid
and Executive and their respective heirs, legal representatives,
successors and assigns. If Polaroid shall be merged into or
consolidated with another entity, the provisions of this Agreement
shall be binding upon and inure to the benefit of the entity surviving
such merger or resulting from such consolidation. Polaroid will require
any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business
or assets of Polaroid, by agreement in form and substance satisfactory
to Executive, to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that Polaroid would be
required to perform it if no such succession had taken place. The
provisions of this Section 11 shall continue to apply to each
subsequent employer of Executive hereunder in the event of any
subsequent merger, consolidation or transfer of assets of such
subsequent employer.
12. PAYMENTS IN EVENT OF DEATH. Should the Executive become eligible to
receive payments and benefits under this Agreement and die prior to
receipt of all such payments and benefits, the residual payments shall
be made to the beneficiaries identified on the Executive's beneficiary
form for the Executive Deferral Compensation Plan. Any residual family
medical and dental benefits which the Executive was receiving on the
Executive's date of death shall continue to the family members the
Executive had covered in such medical and dental plans on such date.
13. WITHHOLDING. Polaroid may, to the extent required by law, withhold
applicable federal, state and local income and other taxes from any
payments due to Executive hereunder.
14. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of
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Massachusetts applicable to contracts made and to be performed therein.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and, except as expressly provided herein,
supersedes all other prior agreements concerning the effect of a Change
in Control on the relationship between Polaroid and Executive. This
Agreement may be changed only by a written agreement executed by
Polaroid and Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the 25th day of April, 1997.
POLAROID CORPORATION
By /s/ XXXX X. XXXXXXXXX
-----------------------------
Xxxx X. XxXxxxxxx
/s/XXXXX X. XXXXX
---------------------------------------
Xxxxx X. Xxxxx
Executive
