CHANGE IN CONTROL AGREEMENT
Exhibit
10.1
Agreement,
made this 21st day of January, 2006, by and between ENGELHARD CORPORATION,
a
Delaware corporation (the “Company”), and Xxxxxx X. Xxxxxxx (the
“Executive”).
WHEREAS,
the Executive is a key employee of the Company; and
WHEREAS,
the Compensation Committee of the Board of Directors of the Company (the
“Compensation Committee”) and the Board of Directors of the Company (the
“Board”) consider the maintenance of a sound management to be essential to
protecting and enhancing the best interests of the Company and its stockholders
and recognize that the possibility of a change in control raises uncertainty
and
questions among key employees and may result in the departure or distraction
of
such key employees to the detriment of the Company and its stockholders;
and
WHEREAS,
the Compensation Committee and the Board wish to assure that the Company will
have the continued dedication of the Executive and the availability of his
advice and counsel, notwithstanding the possibility, threat or occurrence of
a
bid to take over control of the Company, and to induce the Executive to remain
in the employ of the Company; and
WHEREAS,
the Executive is willing to continue to serve the Company taking into account
the provisions of this Agreement; and
WHEREAS,
upon recommendation of the Compensation Committee, the Board has approved this
Agreement with the Executive;
NOW,
THEREFORE, in consideration of the foregoing, and the respective covenants
and
agreements of the parties herein contained, the parties agree as
follows:
1. Change
in Control.
Benefits shall be provided hereunder only in the event there shall have occurred
a “Change in Control,” as such term is defined below, and the Executive’s
employment by the Company shall thereafter have terminated in accordance with
Section 2 below within the period beginning on the date of the “Change in
Control” and ending on the third anniversary of the date on which a “Change in
Control” occurs (the “Protection Period”). If any Protection Period terminates
without the Executive’s employment having terminated, any “Change in Control”
subsequent to such termination shall give rise to a new Protection Period.
No
benefits shall be paid under this Agreement if the Executive’s employment
terminates outside of a Protection Period.
For
purposes of this Agreement, a “Change in Control” shall mean:
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(A) the
acquisition by any 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 (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 25% or more of either (1)
the
then outstanding shares of common stock of the Company (the “Outstanding Company
Common Stock”) or (2) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided,
however,
that
the following acquisitions shall not constitute a Change in Control: (i) any
acquisition directly from the Company (other than by exercise of a conversion
privilege); (ii) any acquisition by the Company or any of its subsidiaries;
(iii) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any of its subsidiaries; (iv) any acquisition
by
any corporation with respect to which, following such acquisition, more than
60%
of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such acquisition in substantially
the same proportions as their ownership, immediately prior to such acquisition,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be; or (v) any acquisition by a Person owning more
than 25% of the Outstanding Company Common Stock on the date
hereof;
(B) during
any period of two consecutive years, individuals who, as of the beginning of
such period, constitute the Board (the “Incumbent Board”) cease for any reason
to constitute at least a majority of the Board; provided,
however,
that
any individual becoming a director subsequent to the beginning of such period
whose election, or nomination for election by the Company’s shareholders, was
approved by a vote of at least a majority of the directors then comprising
the
Incumbent Board shall be considered as though such individual were a member
of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act); or
(C) consummation
of a reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
outstanding Company Voting Securities immediately prior to such reorganization,
merger or consolidation, do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such reorganization, merger or consolidation in substantially
the
same proportions as their ownership, immediately
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prior
to
such reorganization, merger or consolidation, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be;
or
(D)
(1)
approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company or (2) consummation of a sale or other disposition
of
all or substantially all of the assets of the Company, other than to a
corporation with respect to which following such sale or other disposition,
more
than 60% of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the outstanding
Company Common Stock and Outstanding Company Voting Securities immediately
prior
to such sale or other disposition in substantially the same proportions as
their
ownership, immediately prior to such sale or other disposition, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities,
as
the case may be.
2. Termination
Following Change in Control.
The
Executive shall be entitled to the benefits provided in Section 3 hereof upon
any termination of his employment with the Company within a Protection Period,
except a termination of employment (a) because of his death, (b) because of
a
“Disability,” (c) by the Company for “Cause,” or (d) by the Executive other than
for “Good Reason.”
(i) Disability.
The
Executive’s employment shall be deemed to have terminated because of a
“Disability” if the Executive applies for and is determined to be eligible to
receive disability benefits under the Company’s Long-Term Disability
Plan.
(ii) Cause.
Termination of the Executive’s employment by the Company for “Cause” shall mean
termination by reason of the Executive’s willful engagement in conduct which
involves dishonesty or moral turpitude in connection with his employment and
which is demonstrably and materially injurious to the financial condition or
reputation of the Company. An act or omission shall he deemed “willful” only if
done, or omitted to be done, in bad faith and without reasonable belief that
it
was in the best interest of the Company. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Cause unless and
until
there shall have been delivered to the Executive a written notice of termination
from the Compensation Committee after reasonable notice to the Executive and
an
opportunity for him, together with his counsel, to be heard before the
Compensation Committee, finding that, in the good faith opinion of such
Compensation Committee, he was guilty of conduct set forth above in the first
sentence of this subsection (ii) and specifying the particulars in
detail.
(iii) Without
Cause.
The
Company may terminate the employment of the Executive without Cause during
a
Protection Period only by giving the Executive written notice of termination
to
that effect. In that event, the Executive’s employment shall terminate on the
last day of the month in which such notice is given (or such later date as
may
be specified in such notice), and the benefits set forth in Section 3 hereof
shall be provided to the Executive.
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(iv) Good
Reason.
Termination of employment by the Executive for “Good Reason” shall mean
termination:
(A)
within
a
Protection Period, if there has occurred a reduction by the Company in the
Executive’s base salary or incentive compensation opportunity in effect
immediately before the beginning of the Protection Period or as increased from
time to time thereafter;
(B) within
a
Protection Period, if the Company has materially diminished the Executive’s job
authorities or responsibilities with the Company immediately before the
beginning of the Protection Period, and for this purpose such diminution shall
not be treated
as occurring solely due to the fact that the Company is no longer a publicly
traded company or the fact that the Company is a subsidiary of another
company;
(C)
within
a
Protection Period, and without the Executive’s written consent, if the Company
has required the Executive to be relocated anywhere in excess of thirty-five
(35) miles from his office location immediately before the beginning of the
Protection Period, except for required travel on the business of the Company
to
an extent substantially consistent with the Executive’s business travel
obligations immediately before the beginning of the Protection Period;
or
(D) within
a
Protection Period, if the Company has failed to obtain the assumption of the
obligations contained in this Agreement by any successor as contemplated in
Section 8(c) hereof.
The
Executive shall exercise his right to terminate his employment for Good Reason
by giving the Company a written notice of termination specifying in reasonable
detail the circumstances constituting such Good Reason. In that event, the
Executive’s employment shall terminate on the last day of the month in which
such notice is given.
A
termination of employment by the Executive within a Protection Period shall
be
for Good Reason if one of the occurrences specified in this subsection (iv)
shall have occurred, notwithstanding that the Executive may have other reasons
for terminating employment, including employment by another employer which
the
Executive desires to accept.
3. Benefits
Upon Termination Within Protection Period.
If,
within a Protection Period, the Executive’s employment by the Company shall be
terminated (a) by the Company other than for Cause or because of a Disability,
or (b) by the Executive for Good Reason, the Executive shall be entitled to
the
benefits provided for below:
(i) The
Company shall pay to the Executive through the date of the Executive’s
termination of employment salary at the rate then in effect, together with
salary in lieu of vacation accrued to the date on which his employment
terminates, in accordance with the standard payroll practices of the
Company;
(ii) The
Company shall pay to the Executive an amount in cash equal to two times the
sum
of (A) his highest annual base salary in effect during the Protection Period,
and (B) the cash value of the incentive pool under the Company’s Incentive
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Compensation
Plan for the Executive for the calendar year that includes the date of the
Change in Control, determined based on the Executive’s annual base salary in
effect at the time of the Change in Control, the Executive’s “Pool Development
Factors” (i.e., cash bonus factor (for calendar year 2006, 100% of base salary),
equity pool factor (for calendar year 2006, 50% of base salary) and stock
options factor (for calendar year 2006, 85% of base salary)) and the Executive’s
Long Term Performance Unit factor (i.e., for calendar year 2006, 50% of base
salary) under the Incentive Compensation Plan for the year that includes the
date of the Change in Control (the total amount of this clause (B) if a Change
in Control were to occur in calendar year 2006 being 285% of annual base salary
in effect at the time of the Change
in
Control); and such payment shall be made in a lump sum within 10 business days
after the date of such termination of employment; and
(iii) The
Company shall continue to cover the Executive and his dependents under, or
provide the Executive and his dependents with insurance coverage no less
favorable than, the Company’s health and dental benefit plans (as in effect on
the day immediately preceding the Protection Period or, at the option of the
Executive, on the date of termination of his employment) for a period equal
to
the lesser of (x) two years following the date of termination or (y) until
the
Executive is provided by another employer with benefits substantially comparable
to the benefits provided by such plans or programs.
4. 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 plans, practices,
policies or programs provided by the Company or any of its subsidiaries and
for
which the Executive may qualify, nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any stock option or other
agreements with the Company or any of its subsidiaries; provided,
however,
that if
the Executive receives benefits under Section 3 hereof he shall not also be
entitled to salary continuation benefits under any salary continuation program
of the Company. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, practice, policy or program of
the
Company or any of its subsidiaries at or subsequent to the date of termination
of the Executive’s employment shall be payable in accordance with such plan,
practice, policy or program.
5. Full-Settlement;
Legal Expenses.
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
set-off, counterclaim, recoupment, defense or other claim, right or action
which
the Company may have against the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other action by
way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement. The Company agrees to pay, upon written demand
therefor by the Executive, all legal fees and expenses which the Executive
may
reasonably incur as a result of any dispute or contest by or with the Company
or
others regarding the validity or enforceability of, or liability under, any
provision of this Agreement (including as a result of any contest by the
Executive about the amount of any payment hereunder), plus in each case interest
at the applicable Federal rate provided for in Section 7872(f)(2) of the
Internal Revenue Code of 1986, as amended (the “Code”); provided,
however,
that
the Company shall be required to pay such legal fees and expenses only if the
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Executive
prevails on at least one material claim or material defense in the dispute
or
contest. In any such action brought by the Executive for damages or to enforce
any provisions of this Agreement, he shall be entitled to seek both legal and
equitable relief and remedies, including, without limitation, specific
performance of the Company’s obligations hereunder, in his sole
discretion.
6. Certain
Additional Payments by the Company.
(a) Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution made, or benefit provided
(including, without limitation,
the acceleration of any payment, distribution or benefit), by the Company to
or
for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of
the Code (or any similar excise tax) or any interest or penalties are incurred
by the Executive with respect to such excise tax (such excise tax, together
with
any such interest and penalties, are hereinafter 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 Excise Tax, income tax or employment
tax)
imposed upon the Gross-Up Payment and any interest or penalties imposed with
respect to such taxes, the Executive retains from the Gross-Up Payment an amount
equal to the Excise Tax imposed upon the Payments.
(b) Subject
to the provisions of Section 6(c), all determinations required to be made under
this Section 6, including determination of whether a Gross-Up Payment is
required and of the amount of any such Gross-up Payment, shall be made by Ernst
& Young LLP (the “Accounting Firm”), which shall provide detailed supporting
calculations to the Company within 15 business days of the date of termination
of the Executive’s employment, if applicable, or such earlier time as is
requested by the Company, provided
that any
determination that an Excise Tax is payable by the Executive shall be made
on
the basis of substantial authority. The Company will promptly provide copies
of
such supporting calculations to the Executive. The initial Gross-Up Payment,
if
any, as determined pursuant to this Section 6(b), shall be paid to the Executive
within five business days of the receipt of the Accounting Firm’s determination.
If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Company with a written opinion that substantial
authority exists for the Executive not to report any Excise Tax on his Federal
income tax return and, as a result, the Company is not required to withhold
Excise Tax from payments to the Executive. The Company will promptly provide
a
copy of any such opinion to the Executive. Any determination by the Accounting
Firm meeting the requirements of this Section 6(b) shall be binding upon the
Company and the Executive; subject only to payments pursuant to the following
sentence based on a determination that additional Gross-Up Payments should
have
been made, consistent with the calculations required to be made hereunder (the
amount of such additional payments is referred to herein as the “Gross-Up
Underpayment”). In the event that the Company exhausts its remedies pursuant to
Section 6(c) and the Executive thereafter is required to make a payment of
any
Excise Tax, the Accounting Firm shall determine the amount of the Gross-Up
Underpayment that has occurred and any such Gross-Up Underpayment shall be
promptly paid by the Company to or for the
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benefit
of the Executive. The fees and disbursements of the Accounting Firm shall be
paid by the Company.
(c) The
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company
of
a Gross-Up Payment. Such notification shall be given as soon as practicable
but
not later than ten business days after the Executive receives written notice
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. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date
on
which it 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
and
that it will bear the costs and provide the indemnification as required by
this
sentence, the Executive shall:
(i) give
the
Company any information reasonably requested by the Company relating to such
claim,
(ii) take
such
action in connection with contesting such claim as the Company 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 the Company,
(iii) cooperate
with the Company in good faith in order effectively to contest such claim,
and
(iv) permit
the Company to participate in any proceedings relating to such
claim;
provided,
however,
that
the Company 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 the Executive harmless, on an after-tax basis, for
any
Excise Tax, income tax or employment 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
6(c), the Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo 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 the Executive
to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and the 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 the Company shall
determine; provided,
however,
that if
the Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive on an
interest-free basis and shall indemnify and hold the Executive harmless, on
an
after-tax basis, from any Excise Tax, income tax or employment 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
further provided
that any
extension of the statute of limitations relating to the payment of taxes for
the
taxable year of the Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore,
the
Company’s control of the contest
7
shall
be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the 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 the Executive of an amount advanced by the Company pursuant
to
Section 6(c), the Executive becomes entitled to receive any refund with respect
to such claim, the Executive shall (subject to the Company’s complying with the
requirements of Section 6(c)) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 6(c), a determination is made that
the Executive
shall not be entitled to any refund with respect to such claim and the Company
does not notify the Executive in writing of its intent to contest such denial
of
refund prior to the expiration of 30 days after such determination, then any
obligation of the Executive to repay such advance shall be forgiven and the
amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
7. Confidential
Information.
The
Executive shall hold in a fiduciary capacity for the benefit of the Company
all
secret or confidential information, knowledge or data relating to the Company
or
any of its subsidiaries, and their respective businesses, which shall have
been
obtained by the Executive during the Executive’s employment by the Company or
any of its subsidiaries and which shall not be or become public knowledge (other
than by acts of the Executive or his representatives in violation of this
Agreement). After the date of termination of the Executive’s employment with the
Company, the Executive shall not, without the prior written consent of the
Company, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In no event shall
an
asserted violation of the provisions of this Section 7 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement.
8. Successors.
(a) This
Agreement is personal to the Executive and without the prior written consent
of
the Company shall not be assignable by the Executive otherwise than by will
or
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Executive’s legal representatives or successor(s)
in interest.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns.
(c) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly 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 had taken place. As used in this
Agreement, other than for purposes of Section 2(iv)(B) above, “Company” shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
by
operation of law or otherwise.
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9. Section
409A.
The
Company will amend this Agreement, the Deferred Compensation Plan for Key
Employees of Engelhard Corporation, the Supplemental Retirement Program of
Engelhard Corporation and any other agreement between the Company and the
Executive and plan maintained by the Company or its affiliates in which the
Executive participates which, in any such case, is or otherwise would be subject
to Section 409A of the Code (collectively, the “DC Plans and Agreements”) in a
timely manner to the extent, if any, necessary to avoid additional tax or
interest imposed under Section 409A and the regulations issued thereunder;
provided,
however,
any
such amendment shall be made in a manner which does not reduce the economic
value
of
the DC Plans and Agreements to the Executive, and any such amendment shall
not
defer the date of any payment, or benefit provided, to the Executive unless
Ernst & Young LLP advises the Company in writing (which written
determination is promptly provided to the Executive by the Company) that there
is not substantial authority for otherwise avoiding additional tax or interest
under Section 409A and in no event will payments be deferred due to Section
409A
to a date that is more than six months following termination of the Executive’s
employment. The Company will consult with the Executive prior to making any
such
amendment, and the Executive agrees that his consent to an amendment that is
consistent with the provisions hereof and satisfies the foregoing proviso will
not be unreasonably withheld. The Executive will report for income tax purposes
with respect to Section 409A in a manner consistent with the Company’s reporting
(as communicated in writing by the Company to the Executive), unless
inconsistent reporting is otherwise required after audit by the Internal Revenue
Service. In the event of such an audit, the Executive and the Company agree
to
follow procedures substantially similar to those set forth in Section 6 of
this
Agreement. The Company will not amend any DC Plan and Agreement in a manner
which would cause any grandfather protection under Section 409A to be lost
with
respect to a DC Plan and Agreement. The Company will indemnify and hold the
Executive harmless, on an after-tax basis (including, without limitation, income
tax, additional tax, excise tax, employment tax and any interest or penalties
with respect thereto), from any cost or liability resulting from any additional
tax or interest imposed under Section 409A. Any payments required to be deferred
due to Section 409A will be deposited in the Company’s Supplemental Retirement
Trust for the Executive’s benefit, and the Trustee thereof will be given
irrevocable instructions to pay such amounts to the Executive on the earlier
of
the date that is six months following termination of the Executive’s employment
or the first date permissible under Section 409A. Notwithstanding any such
deposit into the Supplemental Retirement Trust, the Company will continue to
be
liable for such payments until such amounts are fully paid to the Executive.
The
Company will make any amendments to the Supplemental Retirement Trust necessary
to effect the provisions hereof.
10. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without reference to principles of conflict of laws. The
captions of this Agreement are not part of the provisions hereof and shall
have
no force or effect. This Agreement may not be amended or modified otherwise
than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
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(b) All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If
to
the Executive:
Xxxxxx
X.
Xxxxxxx
[
]
[
]
If
to
the Company:
Engelhard
Corporation
000
Xxxx
Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000-0000
Attention:
Xxxxxx X. Xxxxxxxxx, XX
or
to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective when
actually received by the addressee.
(c) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(d) The
Company may withhold from any amounts payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) The
Executive’s failure to insist upon strict compliance with any provision hereof
shall not be deemed to be a waiver of such provision or any other provision
thereof.
(f) This
Agreement contains the entire understanding of the Company and the Executive
with respect to the subject matter hereof but does not supersede or override
the
provisions of any stock option, employee benefit or other plan, program, policy
or practice in which Executive is a participant or under which the Executive
is
a beneficiary.
IN
WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant to the
authorization from its Board of Directors, the Company has caused these presents
to be executed as of the day and year first above written.
Name:
/s/ Xxxxxx X. Xxxxxxx
XXXXXXXXX
CORPORATION
By:
/s/ Xxxxxx X. Xxxxxxxxx, XX
Name:
Xxxxxx X. Xxxxxxxxx, XX
Title:
Vice President, General Counsel
and
Secretary
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Attest:
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
Title:
Vice President, Human Resources
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