EXHIBIT 99.5
SEVERANCE PROTECTION AGREEMENT
FOR EXECUTIVE OFFICERS
THIS AGREEMENT made as of the day of August, 2006 (the "Effective
Date"), by and between Delta & Pine Land Company (the "Company") and
Xxxxxxx X. Xxxxx (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the possibility of a Change in Control (as hereinafter
defined) exists and that the threat or the occurrence of a Change in
Control can result in significant distractions of its key management
personnel because of the uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the
best interest of the Company and its stockholders to retain the services of
the Executive in the event of the possibility of a Change in Control and to
ensure his continued dedication and efforts in such event without undue
concern for his personal financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the employ
of the Company in light of a possible Change in Control, the Company
desires to enter into this Agreement with the Executive to provide the
Executive with certain benefits.
NOW, THEREFORE, in consideration of the respective agreements of
the parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of the
Effective Date and shall continue in effect until December 31, 2008;
provided, however, that on December 31, 2008 and on each anniversary
thereof, the term of this Agreement shall be automatically extended for one
year unless either the Company or the Executive shall have given six months
written notice to the other prior thereto that the term of this Agreement
shall not be so extended; and provided, further, however, that
notwithstanding any such notice by the Company not to extend, the term of
this Agreement shall not expire prior to the expiration of 24 months after
the occurrence of a Change in Control.
2. Definitions.
2.1. Accrued Compensation. For purposes of this Agreement,
"Accrued Compensation" shall mean an amount which shall include all
amounts earned or accrued through the "Termination Date" (as hereinafter
defined) but not paid as of the Termination Date including (a) base
salary, (b) reimbursement for reasonable and necessary expenses incurred
by the Executive on behalf of the Company during the period ending on
the Termination Date, (c) vacation and sick leave pay (to the extent
provided by Company policy or applicable law), and (d) bonuses and
incentive compensation (other than the "Pro Rata Bonus" (as hereinafter
defined)).
2.2. Base Amount. For purposes of this Agreement, "Base
Amount" shall mean the greater of (a) the Executive's annual base salary
at the rate in effect immediately prior to the Change in Control and (b)
the Executive's annual base salary at the rate in effect on the
Termination Date, and shall include all amounts of his base salary that
are deferred under the qualified and non-qualified employee benefit
plans of the Company or any other agreement or arrangement.
2.3. Bonus Amount. For purposes of this Agreement, "Bonus
Amount" shall mean the Executive's highest annual bonus earned (whether
paid or unpaid) during any one of the last five fiscal years that ended
prior to the Change in Control (or, in each case, such lesser period for
which annual bonuses were paid or payable to the Executive).
2.4. Cause. For purposes of this Agreement, a termination of
employment is for "Cause" if the Executive has been convicted of a
felony involving moral turpitude or the termination is evidenced by a
resolution adopted in good faith by two-thirds of the Board that the
Executive (a) intentionally and continually failed substantially to
perform his reasonably assigned duties with the Company (other than a
failure resulting from the Executive's incapacity due to physical or
mental illness or from the Executive's assignment of duties that would
constitute "Good Reason" as hereinafter defined) which failure continued
for a period of at least thirty days after a written notice of demand
for substantial performance has been delivered to the Executive
specifying the manner in which the Executive has failed substantially to
perform, or (b) intentionally engaged in conduct which is demonstrably
and materially injurious to the Company; provided, however, that no
termination of the Executive's employment shall be for Cause as set
forth in clause (b) above until (x) there shall have been delivered to
the Executive a copy of a written notice setting forth that the
Executive was guilty of the conduct set forth in clause (b) and
specifying the particulars thereof in detail, and (y) the Executive
shall have been provided an opportunity to be heard in person by the
Board (with the assistance of the Executive's counsel if the Executive
so desires). Neither an act nor a failure to act, on the Executive's
part shall be considered "intentional" unless the Executive has acted or
failed to act with a lack of good faith and with a lack of reasonable
belief that the Executive's action or failure to act was in the best
interest of the Company. Notwithstanding anything contained in this
Agreement to the contrary, no failure to perform by the Executive after
a Notice of Termination is given by the Executive shall constitute Cause
for purposes of this Agreement.
2.5. Change in Control. For purposes of this Agreement, a
"Change in Control" shall mean the occurrence of any of the following:
(a) An acquisition (other than directly from the Company) by
any "Person" (as the term person is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the then outstanding
common shares ("Shares") or the combined voting power of the Company's
then outstanding voting securities; provided, however, in determining
whether a Change in Control has occurred pursuant to this Section,
Shares or voting securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan
(or a trust forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this
definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or
(iii) any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(b) The individuals who on August 1, 2006 are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at
least two-thirds of the members of the Board; provided, however, that
if the election, or nomination for election by the Company's common
stockholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent
Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) The consummation of:
(1) A merger, consolidation or reorganization with or
into the Company or in which securities of the Company are issued,
unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization with or into the Company or
in which securities of the Company are issued where:
(A) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least fifty percent (50%) of the combined
voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in substantially the
same proportion as their ownership of the voting securities
immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, or a corporation
beneficially directly or indirectly owning a majority of the
voting securities of the Surviving Corporation, and
(C) no Person other than (1) the Company, (2) any
Subsidiary, (3) any employee benefit plan (or any trust forming a
part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company or
any Subsidiary, or (4) any Person who, immediately prior to such
merger, consolidation or reorganization had Beneficial Ownership
of twenty percent (20%) or more of the then outstanding voting
securities or Shares, has Beneficial Ownership of twenty percent
(20%) or more of the combined voting power of the Surviving
Corporation's then outstanding voting securities or its common
stock.
(2) A complete liquidation or dissolution of the Company;
or
(3) The sale or other disposition of all or substantially
all of the assets of the Company to any Person (other than a
transfer to a Subsidiary or the distribution to the Company's
stockholders of the stock of a Subsidiary or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Shares or voting securities as a result of the acquisition
of Shares or voting securities by the Company which, by reducing the
number of Shares or voting securities then outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for the operation
of this sentence) as a result of the acquisition of Shares or voting
securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any
additional Shares or voting securities which increases the percentage of
the then outstanding Shares or voting securities Beneficially Owned by
the Subject Person, then a Change in Control shall occur.
2.6. Company. For purposes of this Agreement, the "Company"
shall include the Company's "Successors and Assigns" (as hereinafter
defined).
2.7. Confidential Information. For purposes of this Agreement
means (a) all technical and business information of the Company, whether
patentable or not, which is of a confidential, trade secret and/or
proprietary character and that is either developed by the Executive
(alone or with others) or to which the Executive has had access during
his employment, (b) all confidential evaluations, and (c) the
confidential use or non-use by the Company of technical or business
information in the public domain.
2.8. Disability. For purposes of this Agreement, "Disability"
shall mean a physical or mental infirmity which impairs the Executive's
ability to substantially perform his duties with the Company for a
period of one hundred eighty consecutive days and the Executive has not
returned to his full time employment prior to the Termination Date as
stated in the "Notice of Termination" (as hereinafter defined).
2.9. Good Reason. (a) For purposes of this Agreement, "Good
Reason" shall mean the occurrence after a Change in Control of any of
the events or conditions described in subsections (1) through (9)
hereof:
(1) a change in the Executive's status, title, position
or responsibilities (including reporting responsibilities) which
represents an adverse change from his status, title, position or
responsibilities as in effect at any time within ninety days
preceding the date of a Change in Control or at any time
thereafter; the assignment to the Executive of any duties or
responsibilities which are inconsistent with his status, title,
position or responsibilities as in effect at any time within ninety
days preceding the date of a Change in Control or at any time
thereafter; or any removal of the Executive from or failure to
reappoint or reelect him to any of such offices or positions,
except in connection with the termination of his employment for
Disability, Cause, as a result of his death or by the Executive
other than for Good Reason;
(2) a reduction in the Executive's base salary or any
failure to pay the Executive any compensation or benefits to which
he is entitled within five days of notice thereof;
(3) a termination or reduction, without consent, of the
facilities (including office space and general location) and staff
reporting available to the Executive;
(4) the Company's requiring the Executive to be based at
any office or location more than 30 miles from that location at
which he performed his services for the Company immediately prior
to the Change in Control, except for (x) travel reasonably required
in the performance of the Executive's responsibilities and (y) any
relocation as to which the Executive has consented in writing;
(5) the failure by the Company to provide the Executive
with compensation and benefits, in the aggregate, at least equal
(in terms of benefit levels and/or reward opportunities) to those
provided for under each other employee benefit plan, program and
practice in which the Executive was participating at any time
within ninety days preceding the date of a Change in Control or at
any time thereafter;
(6) the insolvency or the filing (by any party, including
the Company) of a petition for bankruptcy of the Company, which
petition is not dismissed within sixty days;
(7) any material breach by the Company of any provision
of this Agreement;
(8) any purported termination of the Executive's
employment for Cause by the Company which does not comply with the
terms of Section 2.4; or
(9) the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any Successors and Assigns to
assume and agree to perform this Agreement, as contemplated in
Section 9 hereof.
(b) Any event or condition described in Section 2.8(a)(1)
through (9) which occurs prior to a Change in Control but which the
Executive reasonably demonstrates (1) was at the request of a third
party, or (2) otherwise arose in connection with, or in anticipation
of, a Change in Control which actually occurs, shall constitute Good
Reason for purposes of this Agreement notwithstanding that it occurred
prior to the Change in Control.
(c) The Executive's right to terminate his employment
pursuant to this Section 2.8 shall not be affected by his incapacity
due to a Disability.
2.10. Notice of Termination. For purposes of this Agreement,
following a Change in Control, "Notice of Termination" shall mean a
written notice of termination from the Company of the Executive's
employment which indicates the specific termination provision in this
Agreement relied upon and which sets 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.
2.11. Pro Rata Bonus. For purposes of this Agreement, "Pro
Rata Bonus" shall mean an amount equal to the Bonus Amount multiplied by
a fraction the numerator of which is the number of days in the Company's
fiscal year in which Executive's employment terminates through the
Termination Date and the denominator of which is 365.
2.12. Successors and Assigns. For purposes of this Agreement,
"Successors and Assigns" shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the
Company whether by operation of law or otherwise, and any affiliate of
such Successors and Assigns.
2.13. Termination Date. For purposes of this Agreement,
"Termination Date" shall mean (a) in the case of the Executive's death,
his date of death, (b) in the case of Good Reason, the last day of his
employment, and (b) in all other cases, the date specified in the Notice
of Termination; provided, however, that if the Executive's employment is
terminated by the Company for Cause or due to Disability, the date
specified in the Notice of Termination shall be at least 30 days from
the date the Notice of Termination is given to the Executive, provided
that in the case of Disability the Executive shall not have returned to
the full-time performance of his duties during such period of at least
30 days.
3. Termination of Employment. If, during the term of this
Agreement, the Executive's employment with the Company shall be terminated
within twenty-four months following a Change in Control, the Executive
shall be entitled to the following compensation and benefits:
3.1. If the Executive's employment with the Company shall be
terminated (a) by the Company for Cause or Disability, (b) by reason of
the Executive's death, or (c) by the Executive other than for Good
Reason and other than during the 30 day period commencing on the first
anniversary of the date of the occurrence of a Change in Control (the
"Window Period"), the Company shall pay to the Executive the Accrued
Compensation and, if such termination is other than by the Company for
Cause, the Pro Rata Bonus.
3.2. If the Executive's employment with the Company shall be
terminated for any reason other than as specified in Section 3.1 or
during the Window Period, the Executive shall be entitled to the
following:
(a) the Company shall pay the Executive all Accrued
Compensation and a Pro-Rata Bonus.
(b) the Company shall pay the Executive as severance pay and
in lieu of any further compensation for periods subsequent to the
Termination Date, in a single payment an amount in cash equal to three
times the sum of (1) the Base Amount and (2) the Bonus Amount.
(c) the Company shall maintain for the benefit of the
Executive and his spouse and any dependents, at the expense of the
Company and at no additional cost to the Executive, for 36 months from
the Termination Date, all Executive benefit programs and arrangements,
including but not limited to health insurance, including employee
medical plan benefits, group life insurance, individual life insurance
coverage, accidental death and dismemberment coverage, long term
disability coverage, and other fringe benefits or benefit plans
generally afforded other executive officers of the Company. If any
such coverage cannot be maintained because of requirements of the
insurance or other companies providing such benefits, the Company
shall provide and pay for alternative coverage providing essentially
identical benefits at no additional cost to the Executive. The above
period is to be in addition to that period of time that the Executive
may elect COBRA coverage under such applicable benefit plans. In this
regard, it is the specific agreement of the parties that those
benefits which are typically available under COBRA coverage, at the
expense of the Executive, will be available to the Executive at his
expense for a period of 18 months following the expiration of the 36
months listed above, even though COBRA coverage might otherwise be
unavailable as provided by law.
(d) the Company shall make available at its expense for the
Executive's use for 36 months following the Termination Date, a
company vehicle of a make and model in accordance with the vehicle
policy in effect as of the date of the Change in Control.
(e) the Executive will likely be required to employ a
reputable national executive career transition agency to assist him in
locating and securing suitable employment opportunities. To compensate
the Executive for the costs which he will likely incur, the Company
will pay to the Executive at the time of termination an amount equal
to $30,000. The Executive will be responsible for any and all expenses
in pursuing an executive level employment or job opportunity search
and the Company shall have no other or further obligations to the
Executive except as otherwise provided in this Agreement.
(f) The Company shall pay the Executive a lump sum payment
in an amount equal to difference between the present values of (1) the
Executive's retirement benefit under the Company Retirement Plan (the
"Retirement Plan"), determined on the date of termination as if the
Executive were credited with an additional three Years of Credited
Service (as such term is defined in the Retirement Plan) and annual
compensation continued at the same rate as in effect on the CIC Date
under the Retirement Plan and (2) the Executive's retirement benefit
under the Retirement Plan, determined on the date of termination based
on the Executive's actual Years of Credited Service under the
Retirement Plan.
(g) the Company shall provide the Executive with reasonable
secretarial assistance, a voice mailbox, a laptop computer, an email
account and a mail drop service for 36 months following the
Termination Date to allow the Executive to initiate and continue his
job search as though he were still actively employed by the Company,
and actively handling Company matters.
3.3. (a) The amounts provided for in Sections 3.1 and 3.2(a),
(b), (e) and (f) shall be paid in a single lump sum cash payment within
five days after the Executive's Termination Date (or earlier, if
required by applicable law).
(b) In the event that the Executive is a "specified
employee" for purposes of Section 409A of the Internal Revenue Code of
1986, as amended (the "Code") on the Executive's Termination Date, and
if the Company determines that the delay is necessary in order to
comply with Section 409A(a)(2)(B) of the Code and an Accounting Firm
(as defined in Section 6.2) agrees with the Company's determination,
payments of benefits upon termination of employment (other than under
Section 3.1 and Accrued Compensation under Section 3.2(a)) shall be
made (with interest) within ten (10) days following (i) the date that
is six months after the Termination Date or (ii) the date of the
Executive's death, if earlier.
3.4. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment or otherwise and no such payment shall be offset or reduced
by the amount of any compensation or benefits provided to the Executive
in any subsequent employment except as provided in Section 3.2(c).
3.5. The Executive's entitlement to any other compensation or
benefits or any indemnification shall be determined in accordance with
the Company's employee benefit plans and other applicable programs,
policies and practices or any indemnification agreement then in effect.
4. Notice of Termination. Following a Change in Control, any
purported termination of the Executive's employment by the Company shall be
communicated by Notice of Termination to the Executive. For purposes of
this Agreement, no such purported termination shall be effective without
such Notice of Termination.
5. Treatment of Equity Awards. Nothing in this Agreement shall
amend or modify the terms of any equity compensation award or grant
document that the Executive holds or to which the Executive is a party.
6. Excise Tax Limitation.
6.1. Gross-Up Payment. In the event it shall be determined
that any payment (other than the payment provided for in this Section)
or distribution of any type to or for the benefit of the Executive, by
the Company, any of its affiliates, any Person who acquires ownership or
effective control of the Company or ownership of a substantial portion
of the Company's assets (within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder) or any affiliate of such Person, whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (the "Total Payments"), would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together
with any such interest and penalties, are collectively referred to as
the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income tax,
employment tax or Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Total Payments. For purposes of determining the
amount of the Gross-Up Payment, the Executive shall be deemed to pay
federal, state and local income taxes and employment taxes at the
highest marginal rate of federal, state and local income taxation and
employment taxation in the calendar year in which the Gross-Up Payment
is to be made and/or the calendar year in which the Termination Date
occurs, as applicable, net of the maximum reduction in federal income
taxes that may be obtained from the deduction of such state and local
taxes.
6.2. Determination By Accountant. All mathematical
determinations, and determinations as to whether any of the Total
Payments are "parachute payments" (within the meaning of Section 280G of
the Code), that are required to be made under this Subsection, including
determinations as to whether a Gross-Up Payment is required, the amount
of such Gross-Up Payment and amounts relevant to the last sentence of
this Subsection shall be made by an independent accounting firm selected
by the Executive from among the four largest accounting firms in the
United States (the "Accounting Firm"), which shall provide its
determination (the "Determination"), together with detailed supporting
calculations regarding the amount of any Gross-Up Payment and any other
relevant matter, both to the Company and the Executive by no later than
ten days following the Termination Date, if applicable, or such earlier
time as is requested by the Company or the Executive. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it shall
furnish the Executive and the Company with an opinion reasonably
acceptable to the Executive and the Company that no Excise Tax is
payable (including the reasons therefor) and that he has substantial
authority not to report any Excise Tax on his federal income tax return.
If a Gross-Up Payment is determined to be payable, it shall be paid to
the Executive within ten (10) days after the Determination (and all
accompanying calculations and other material supporting the
Determination) is delivered to the Company or the Executive. Any
determination by the Accounting Firm shall be binding upon the Company
and the Executive, absent manifest error. As a result of 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 not made by the Company should have been made
("Underpayment"), or that Gross-Up Payments will have been made by the
Company which should not have been made ("Overpayments"). In either such
event, the Accounting Firm shall determine the amount of the
Underpayment or Overpayment that has occurred. In the case of an
Underpayment, the amount of such Underpayment (together with any
interest and penalties payable by the Executive as a result of such
Underpayment) shall be promptly paid by the Company to or for the
benefit of the Executive. In the case of an Overpayment, the Executive
shall, at the direction and expense of the Company, take such steps as
are reasonably necessary (including, if reasonable, the filing of
returns and claims for refund), follow reasonable instructions from, and
procedures established by, the Company, and otherwise reasonably
cooperate with the Company to correct such Overpayment, provided,
however, that (i) Executive shall not in any event be obligated to
return to the Company an amount greater than the net after-tax portion
of the Overpayment that he has retained or has recovered as a refund
from the applicable taxing authorities and (ii) this provision shall be
interpreted in a manner consistent with the intent to make the Executive
whole, on an after-tax basis, from the application of the Excise Tax, it
being understood that the correction of an Overpayment may result in the
Executive repaying to the Company an amount which is less than the
Overpayment. The fees and expenses of the Accounting Firm shall be paid
by the Company.
7. Non-Competition Covenant.
7.1. The Company desires the Executive to agree not to compete
with the Company in the event of the Executive's termination of
employment following a Change in Control. The Company is not willing to
enter into this Agreement without such a covenant. As additional
consideration for the agreement of the Company to make payments to or
otherwise compensate the Executive under this Agreement, the Company has
required the Executive to give a Non-Competition Covenant. The Company
may not waive the non-competition obligations in this Section and be
relieved of any of its other obligations under this Agreement.
7.2. In the event of a Change in Control, for the
eighteen-month period following the termination of the Executive's
employment with the Company for any reason, the Executive shall not,
without the prior written consent of the Board, which consent may be
withheld at the sole, absolute and uncontrolled discretion of such
Board, engage or participate in, assist or have an interest in, whether
as an officer, director, partner, owner, employee or otherwise, the
operation, management or conduct of any business or enterprise that
engages in the cotton seed breeding, production and marketing process in
the same geographical area with any line of business in which the
Company is now engaged.
7.3. Nothing in this Section shall prohibit the Executive from
acquiring or holding, for investment purposes only, securities or
ownership interest of any entity which may compete directly or
indirectly with the Company.
7.4. Nothing in this Section shall prohibit the Executive from
seeking or securing employment with a corporation which has a subsidiary
or affiliate whose business activities include cotton seed breeding,
production and marketing so long as the Executive's job duties and
responsibilities do not require or allow the Executive to directly
engage in any activities which would be in violation of this Section,
and so long as he does not violate any of his confidentiality
obligations to the Company.
7.5. In the event of a breach of this Agreement by the
Executive, the Company may seek injunctive relief to prohibit the
Executive from engaging in prohibited competition and/or the Company may
initiate legal proceedings to collect actual damages to the Company
resulting from such breach. A breach by the Executive shall not allow
the Company to terminate its obligations to the Executive under the
other provisions of this Agreement.
8. Confidentiality.
8.1. The Executive shall use his best efforts and diligence
both during and after employment by the Company to protect the
confidential, trade secret and/or proprietary character of all
Confidential Information. The Executive shall not, directly or
indirectly, use (for the Executive or another) or disclose any
Confidential Information, for so long as it shall remain proprietary or
protectible as confidential or trade secret information, except as may
be necessary for the performance of the Executive's duties with the
Company. The Executive shall promptly deliver to the Company, at the
termination of the Executive's employment, or at any other time at the
Company's request, without retaining any copies, all documents and other
material in the Executive's possession relating, directly or indirectly,
to any Confidential Information.
8.2. Each of the Executive's obligations in this Section 8
shall also apply to the confidential, trade secret and proprietary
information learned or acquired by the Executive during his employment
from others with whom the Company has a business relationship. The
Executive understands that he is not to disclose to the Company, or use
for its benefit, any of the confidential, trade secret or proprietary
information of others, including any of the Executive's former
employers.
8.3. In no event shall an asserted violation of the provisions
of this Section 8 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under this Agreement.
9. Successors; Binding Agreement.
9.1. This Agreement shall be binding upon and shall inure to
the benefit of the Company, its Successors and Assigns, and the Company
shall require any Successors and Assigns to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession or
assignment had taken place.
9.2. Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive, his
beneficiaries or legal representatives, except by will or by the laws of
descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the Executive's legal personal representative.
10. Fees and Expenses. The Company shall pay all legal fees and
related expenses (including the costs of experts, evidence and counsel)
incurred by the Executive as they become due as a result of (a) the
Executive seeking to obtain or enforce any right or benefit provided by
this Agreement (including, but not limited to, any such fees and expenses
incurred in connection with (i) the dispute and (ii) the Gross-Up Payment
whether as a result of any applicable government taxing authority
proceeding, audit or otherwise) or by any other plan or arrangement
maintained by the Company under which the Executive is or may be entitled
to receive benefits), and (b) the Executive's hearing before the Board as
contemplated in Section 2.4 of this Agreement; provided, however, that the
circumstances set forth in clause (a) occurred on or after a Change in
Control.
11. Notice. For the purposes of this Agreement, notices and all
other communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, by overnight courier or by facsimile, addressed
to the respective addresses and facsimile numbers last given by each party
to the other, provided that all notices to the Company shall be directed to
the attention of the Board with a copy to the Secretary of the Company. All
notices and communications shall be deemed to have been received on the
date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only
upon receipt.
12. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company
(except for any severance or termination policies, plans, programs or
practices) and for which the Executive may qualify, nor shall anything
herein limit or reduce such rights as the Executive may have under any
other agreements with the Company (except for any severance or termination
agreement). Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company
shall be payable in accordance with such plan or program, except as
explicitly modified by this Agreement.
13. No Guaranteed Employment. The Executive and the Company
acknowledge that, except as may otherwise be provided under any other
written agreement between the Executive and the Company, the employment of
the Executive by the Company is "at will" and may be terminated by either
the Executive or the Company at any time.
14. Settlement of Claims. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim, recoupment,
defense or other right which the Company may have against the Executive or
others.
15. Mutual Non-Disparagement. The Executive agrees that it will
not make or publish any statement critical of the Company, its affiliates
and their respective executive officers and directors, or in any way
adversely affecting or otherwise maligning the business or reputation of
any member of the Company, its affiliates and subsidiaries and their
respective officers, directors and employees. The Company, its affiliates
and subsidiaries agree and the Company shall use its best efforts to cause
their respective executive officers and directors to agree, that they will
not make or publish any statement critical of the Executive, or in any way
adversely affecting or otherwise maligning the Executive's reputation.
16. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by the Executive and the
Company. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreement or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
17. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without giving effect to the conflict of laws principles thereof. Any
action brought by any party to this Agreement shall be brought and
maintained in a court of competent jurisdiction in the State of Delaware.
18. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions
hereof.
19. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
if any, understandings and arrangements, oral or written, between the
parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
ATTEST: By:
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Name: Xxxxxxx Xxxxx
Title: Vice President - Finance,
Treasurer and Assistant
Secretary
By:
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Xxxxxxx X. Xxxxx
