Exhibit 10aa
XXXXXX CORPORATION
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OFFICER SPECIAL SEVERANCE AGREEMENT
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THIS AGREEMENT, dated as of this 2nd_ day of October, 1991, by and
between Xxxxxx Corporation, a Massachusetts corporation, (herein referred to as
the "Company") and Xxxxxx X. Xxxxxx, Treasurer (the "Officer"),
WITNESSETH THAT
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WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
for the Company to agree to provide benefits under circumstances described below
to the Officer as one of the elected corporate officers who is responsible for
the policy-making functions of the Company and the overall viability of the
Company's business; and
WHEREAS, the Board recognizes that the possibility of a change in
control of the Company is unsettling to the Officer and wishes to make
arrangements at this time to ensure the Officer's continuing dedication to his
or her duties to the Company and its shareholders notwithstanding the occurrence
of any attempt by outside parties to gain control of the Company; and
WHEREAS, the Board believes it important, should the Company receive
proposals from such outside parties, to enable the Officer, without being
distracted by the uncertainties of the Officer's own employment situation, in
addition to the Officer's regular duties, to participate in the assessment of
such proposals and provision of advice to the Board as to the best interests of
the Company and its shareholders and to take such other action as the Board
determines to be appropriate; and
WHEREAS, the Board also wishes to demonstrate to the Officer that the
Company is concerned for the Officer's welfare and intends to ensure that he or
she as a loyal officer is treated fairly;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. Change in Control. The term "Change in Control" shall mean the
occurrence of any one or more of the following prior to the Agreement
Termination Date, as defined in Paragraph 3(a):
(a) The Company receives or should have received a report on Schedule
13D (or any successor form) filed with the Securities and
Exchange Commission pursuant to Section 13(d) of the Securities
Exchange Act of 1934, as amended (hereinafter referred to as the
"Act"), disclosing that any person, group, partnership,
association, corporation or other entity is the beneficial owner,
directly or indirectly, of twenty-five percent (25%) or more of
the voting power of the then outstanding voting securities of the
Company;
(b) Any person (as such term is defined in Section 13(d) of the Act),
group, partnership, association, corporation or other entity
other than the Company, a wholly-owned subsidiary of the Company
or the trustee(s) of any qualified retirement plan maintained by
the Company or a wholly-owned subsidiary of the Company, becomes
the beneficial owner of shares pursuant to a tender offer or
exchange offer to acquire voting securities of the Company (or
securities convertible into same) for cash, securities or any
other consideration, provided that after consummation of the
offer, the person, group, partnership, association, corporation
or other entity in question is the beneficial owner (as defined
in Rule 13(d)-3 under the Act) directly or indirectly, of
twenty-five percent (25%) or more of the then outstanding voting
securities of the Company (calculated as directed in paragraph
(d) of Rule 13(d)-3 under the Act in the case of rights to
acquire voting securities);
(c) The members of the Board ("Directors") or the shareholders of the
Company approve (i) any consolidation or merger of the Company in
which the Company would not be the continuing or surviving
corporation and pursuant to which shares of voting securities of
the Company would be converted into cash, securities or other
property, or (ii) any sale, lease, exchange or other transfer (in
a single transaction or in a series of related transactions) of
all or substantially all the assets of the Company; or
(d) During any period of twenty-four consecutive months, individuals
who at the beginning of such period constituted the Board cease
for any reason to constitute a majority thereof; provided,
however, that any Director who is not in office at the beginning
of such 24-month period, but whose election was to fill a vacancy
caused by death or retirement and was approved or nominated, as
applicable, by a vote of at least two-thirds of the Directors
then still in office who either were Directors at the beginning
of such period or whose election or nomination for election was
previously so approved shall be deemed to have been in office at
the beginning of such period for purposes of this provision.
2. Position and Responsibilities. For such period as the Officer is employed
during the term of this Agreement, the Officer agrees to serve the Company
and/or one or more subsidiaries or affiliates of the Company ("subsidiary")
in a management capacity. From and after the date on which any Change in
Control occurs such service shall involve such duties and responsibilities
at least equal in importance and scope to those of the Officer's position
immediately prior to the date of such Change in Control, as the Board, the
Chairman of the Board, or the Chief Executive Officer may from time to time
in good faith determine, and the Officer shall perform such duties and
responsibilities in good faith.
3. Agreement Termination Date; Term of Agreement.
(a) "Agreement Termination Date" means the third anniversary of the date
as of which this Agreement is dated; provided, however, that the
Agreement Termination Date shall automatically be extended for an
additional one year period on each anniversary of the date as of which
this Agreement is dated unless either party to this Agreement notifies
the other party in writing during the ninety (90) day period preceding
any such anniversary that the Agreement Termination Date shall not be
so extended; and provided, further, that the Agreement Termination
Date may also be extended at any time and for any period in a written
instrument modifying or renewing this Agreement that is in accordance
with Paragraph 11. Should one or more Changes in Control occur at any
time prior to the Agreement Termination Date, all provisions of this
Agreement shall apply and continue in full force and effect in
accordance with their terms for a period beginning with the date on
which the first Change in Control occurs and ending thirty-six (36)
months following the date of the last Change in Control that occurs
prior to the Agreement Termination Date. If no Change in Control
occurs at any time prior to the Agreement Termination Date, this
Agreement shall terminate, except that Paragraphs 4(g) and 9 shall
continue to apply to the extent the Officer disputes the termination
of the Agreement.
(b) The term of this Agreement shall begin on the date as of which this
Agreement is dated and shall continue through (i) the day immediately
preceding the Agreement Termination Date, as defined in the first
sentence of Paragraph 3(a) above, if no Change in Control occurs prior
to the Agreement Termination Date; or (ii) if a Change in Control
occurs prior to the Agreement Termination Date, the last day of the
thirty-six (36) month period following the date of the last Change in
Control that occurs prior to the Agreement Termination Date; provided,
that the terms of this Agreement shall remain in full force and effect
after the date on which the term of this Agreement expires, to the
extent the Officer is then receiving benefits hereunder, until the
date as of which all payments and other benefits to which the Officer
had become entitled hereunder prior to the date on which this
Agreement expires have been paid or provided in full.
4. Severance Benefits. If within any period commencing with the day any
Change in Control occurs and ending thirty-six (36) months after the
date of that Change in Control the Officer's employment is terminated
by the Company and by all subsidiaries, if any, by which the Officer
is employed, including Constructive Termination (as defined in
Paragraph 6(b)), but excluding termination for Cause (as defined in
Paragraph 6(a)), the Officer shall be entitled to the following
benefits in addition to any and all other severance benefits to which
the Officer may be entitled under any other plan, program or policy of
the Company (or subsidiary) or agreement between the Officer and the
Company (or subsidiary), PROVIDED THAT THE officer enters into a
noncompetition agreement in substantially the form attached hereto as
Exhibit A:
(a) Salary and Bonus Amount. The Company will pay to the Officer
within fifteen (15) business days of such termination of
employment a lump sum cash amount equal to the present value of
the product obtained by multiplying (1) the sum of (i) salary at
the annualized rate which was being paid by the Company and/or
subsidiaries to the Officer immediately prior to the time of such
termination or, if greater, at the time of the Change in Control
plus (ii) the annual target bonus and/or any other cash bonus
awards last determined for the Officer or, if greater, most
recently paid prior to the Change in Control, by (2) two; for
purposes of this Paragraph 4, present value shall be calculated
using an interest rate equal to the rate reported for the auction
of thirteen week United States Treasury Bills on the date
coincident with or most immediately preceding the date of such
termination as reported in The Wall Street Journal;
(b) Pension Plan Amount. The Company will pay to the Officer within
fifteen (15) business days of such termination of employment a
lump sum cash amount equal to the lump sum present value of the
accrued benefit that would be payable under the Xxxxxx
Corporation Pension Plan for Salaried Employees (the "Pension
Plan") or any successor plan, if the Officer remained in
full-time, active salaried employment with the Company for a
period of twenty-four (24) consecutive months following the month
in which such termination of employment occurs minus the lump sum
present value of the accrued benefit of the Officer under said
plan as of the date of such termination of employment;
(c) Other Company Benefits. For a period of twenty-four (24)
consecutive months following the month in which such termination
of employment occurs, the Officer shall be entitled, at no
greater monthly cost to the Officer than the Officer's monthly
cost immediately prior to such termination of the Officer's
employment, to continue participation in those benefit programs
of the Company (or a subsidiary) available to the Officers of the
Company (or subsidiary) in which the Officer participated
immediately prior to the time of the Officer's termination of
employment, excluding vacation accrual, paid holidays, salary
continuation for short term disability, holiday gifts, and
qualified retirement plans but including such benefits as group
term medical insurance, dental insurance, life insurance,
dependent life insurance, personal and family accident insurance,
long term disability insurance, annual physical examination,
vision/hearing program, prescription drug card program, stock
purchase program, U.S. savings bond program, tax planning and
compliance service and tuition refund program; provided that: (1)
provision of other Company benefits pursuant to this Paragraph
4(c) shall not result in any duplication of benefits provided by
the Company (or subsidiary); (2) to the extent the Officer is not
eligible under the terms of one or more of such plans or programs
that are insured plans or programs, the Company shall (unless the
Officer is then uninsurable) provide the Officer with
substantially similar insurance coverage at no greater monthly
cost to the Officer than if the Officer had continued to
participate in the Company's plan or program' and (3) such
benefits shall cease if and to the extent that any subsequent
employer of the Officer provides substantially equivalent
benefits to the Officer at no substantially greater monthly cost
to the Officer than the Officer's monthly cost for such benefits
immediately prior to the Officer's termination of employment;
(d) Company Car Amount. If the Officer, as of the date of termination
of employment, either was receiving a monthly car allowance or
had a company-leased car, any such car allowance will be
discontinued as of the date of termination of employment and any
such company-leased car must be returned to the Company within
thirty (30) days after the date of termination of employment.
Upon such discontinuance or return, the Officer will receive a
single lump sum payment of $5,000 within fifteen (15) business
days following the date of such discontinuance or return;
provided, that if the Officer is entitled to receive a payment
for the same reason and upon the occurrence of substantially the
same event as described in this Paragraph 4(d), the payment
pursuant to this Paragraph 4(d) shall be reduced (but not below
$0) by the amount of such other payment;
(e) Nonqualified Plans. If the Officer participated in any
nonqualified retirement and/or deferred compensation plan(s) of
the Company immediately prior to the time of such termination,
the Company shall not cause or allow the termination of,
reduction of benefits under, or termination or impairment of any
arrangement established to secure payment of benefits under, any
such plan with respect to the Officer. Further, the Company or
subsidiaries will provide the Officer with service credit for
benefits under any nonqualified retirement or deferred
compensation plan(s) of the Company, if the Officer participated
in such plan(s) immediately prior to the time of such
termination, equal to two additional years' service accruals upon
such termination of the Officer's employment; and
(f) Outplacement Services. In the event of such termination of
employment, the Company shall provide to the Officer
executive outplacement services provided on a one-to-one
basis by a senior counselor of a firm nationally recognized
as a reputable provider of such services for a minimum sixty
(60) hours, plus evaluation testing, at a location not more
than two hundred (200) miles from the primary personal
residence of the Officer; and
(g) Reimbursement of Certain Expenses. The Company will promptly
reimburse the Officer for any and all legal and accounting
fees and expenses (including without limitation any travel
and lodging expenses of the Officer that would be
reimbursable in accordance with the then current Company
travel expense reimbursement policy) incurred by the Officer
as a result of such termination of employment in connection
with the interpretation, implementation or enforcement of
any of the provisions of this Agreement (regardless of which
party ultimately prevails); and
(h) Limitation on Amounts. Notwithstanding any provision of this
Agreement to the contrary, the aggregate amount that shall
be paid pursuant to this Agreement shall be the maximum
amount payable under this Paragraph 4 that will not (when
aggregated with any other payments by the Company or any
subsidiary) result in the imposition of a tax under Section
4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any successor provision; provided, that if all
or any part of the value of benefits under more than one
subparagraph of this Paragraph 4 is treated as a "parachute
payment" within the meaning of Code ss. 280G for purposes
of determining whether payments would result in the
imposition of said tax, then the Officer shall have sole
discretion to determine which benefit(s) to forego in order
to avoid the imposition of said tax.
5. Other Severance Payments. If the Officer immediately prior to the date of
any Change in Control would be entitled to receive cash severance payments
by reason of termination of employment (if termination then occurred) under
any other plan, program or policy of the Company (or subsidiary) or any
agreement between the Officer and the Company (or subsidiary) (collectively
"policy"), and if there is a reduction in or termination of any such
amounts payable on or after such Change in Control but before the Officer's
employment is terminated, then if the Officer becomes entitled to severance
benefits pursuant to Paragraph 4 above the Officer shall also be entitled
to receive a cash payment that, when aggregated with any amount actually
paid pursuant to any such policy, equals the amount of cash severance
payments that would have been payable pursuant to such policy immediately
prior to the date of such Change in Control. Further, if the Officer
becomes entitled to receive cash severance payments under any such policy
by reason of termination of employment within any period commencing with
the day any Change in Control occurs and ending thirty-six (36) months
after the date of that Change in Control, then to the extent such payments
would be paid later than the date on which payments must be made under
Paragraph 4(a) above the present value (determined as provided in Paragraph
4(a)) of such payments shall be paid no later than the date on which
payments must be made under Paragraph 4(a). In addition, if on the date of
any Change in Control the Officer is receiving any such payments, the
present value (determined as provided in Paragraph 4(a)) of the remainder
of such payments shall be paid no later than the date on which payments
must be made under Paragraph 4(a).
6. (a) Termination for Cause. "Cause" means only the willful commission by
the Officer of material theft or embezzlement or other serious and
substantial crimes against the Company or subsidiaries. For purposes
of this definition, no act or omission shall be considered to have
been "willful" unless it was not in good faith and the Officer had
knowledge at the time that the act or omission was not in the best
interests of the Company or subsidiaries. Further, the Officer's
attempt to secure employment with another employer shall not
constitute an event of "cause". Finally, any termination of the
Officer's employment by the Company or any subsidiary at a time when
the Officer is unable to perform all or any portion of the Officer's
regular services by reason of any physical or mental impairment not
expected to continue for a period exceeding twelve (12) consecutive
months shall not constitute termination by the Company or subsidiary
for "cause".
(b) Constructive Termination. If the Officer leaves the employ of the
Company or any subsidiary for any reason:
(i) following a reduction in the Officer's position, compensation,
bonus formula, responsibilities, authority, reputation, pension
arrangements, stock option or other incentive compensation
arrangements, or other Company benefits that the Officer would be
entitled to pursuant to Paragraph 4(c) or 4(e) if the Officer's
employment then terminated, or a material reduction in the
Officer's prestige, enjoyed by the Officer prior to the Change in
Control, as determined in good faith by the Officer; provided,
that the Officer's failure immediately following any such
reduction to terminate employment or otherwise to exercise his or
her rights hereunder arising from such reduction shall not
constitute a waiver of the Officer's rights hereunder arising
from such reduction or otherwise impair the Officer's ability to
exercise such rights within one year following any such
reduction;
(ii) following an attempt by the Company or any subsidiary to relocate
the Officer to, or to require the Officer to perform regular
services at, any location that is outside the continental United
States of America; provided, that the Officer's failure
immediately following any such attempt to terminate employment or
otherwise to exercise his or her rights hereunder arising from
such attempt shall not constitute a waiver of the Officer's
rights hereunder arising from such attempt or otherwise impair
the Officer's ability to exercise such rights within one year
following any such attempt;
(iii) within ninety (90) days of the Officer's receipt of notice from
the Company that the Company's ratio of current assets to current
liabilities as reflected on any quarterly or annual statements
filed by the Company with the Securities and Exchange Commission
falls below one and one-quarter (1 1/4) to one (1) or any date
on which the total of -- the Company's long-term debt (including
the current portion due within one year) and its short-term debt
incurred for money borrowed exceeds seventy-five percent (75%) of
the Company's net worth as reflected in such statements filed
with the Securities and Exchange Commission (each, a "Financial
Termination Event"); provided, that if at any time the Company is
no longer required to file such statements or fails to file such
statements, the Company shall cause to be prepared in accordance
with generally accepted accounting principles consistently
applied quarterly financial statements (within forty-five (45)
days of the end of the Company's fiscal quarter) and annual
financial statements (within sixty (60) days of the end of the
Company's fiscal year) of the Company indicating the information
required to determine whether either Financial Termination Event
has occurred; and provided, further, that the Company shall
provide written notice to the Officer within five (5) business
days after the date any such statement is filed (or has been
completed, if not filed) if either Financial Termination Event
has occurred; and provided, further, that the Financial
Termination Event shall not have resulted from economic
conditions generally adverse to the Company or its markets but
rather shall have resulted from deliberate mismanagement of the
Company's affairs by, or a diminution of the Company's assets on
the part of, the person(s) controlling the Company subsequent to
the Change of Control;
(iv) at any time within twelve (12) months after the Company notifies
the Officer in writing that the Agreement Termination Date shall
not be extended, as provided in Paragraph 3(a); or
(v) at any time within twelve (12) months following the date the
Officer knows that the Company has breached any of the terms of
this Agreement;
in each of the foregoing cases regardless of whether the Officer is
entitled to elect, or elects, retirement upon leaving the employ of
the Company or any subsidiary, such termination of employment shall
constitute termination by the Company or subsidiary for reasons other
than Cause.
Finally, if the Officer is employed by the Company and also by one or
more subsidiaries and if the Officer's employment is terminated by one
or more but not by all of such employing entities, such termination of
the Officer's employment shall constitute termination by all such
employing entities if termination by less than all such employing
entities results in any reduction described in Paragraph 6(b)(i) above
and if the Officer leaves the employ of the one or more employing
entities by which the Officer's employment was not terminated.
Any such termination shall constitute "Constructive Termination".
7. Consolidations or Merger. If the Company is at any time before or after a
Change in Control merged or consolidated into or with any other
corporation, association, partnership or other entity (whether or not the
Company is the surviving entity), or if substantially all of the assets
thereof are transferred to another corporation, association, partnership or
other entity, the provisions of this Agreement will be binding upon and
inure to the benefit of the corporation, association, partnership or other
entity resulting from such merger or consolidation or the acquirer of such
assets (collectively, "acquiring entity") unless the Officer voluntarily
elects not to become an employee of the acquiring entity as determined in
good faith by the Officer. Furthermore, in the event of any such
consolidation or transfer of substantially all of the assets of the
Company, the Company shall enter into an agreement with the acquiring
entity that shall provide that such acquiring entity shall assume this
Agreement and all obligations and liabilities under this Agreement;
provided, that the Company's failure to comply with this provision shall
not adversely affect any right of the Officer hereunder. This Paragraph 7
will apply in the event of any subsequent merger or consolidation or
transfer of assets.
In the event of any merger, consolidation or sale of assets described
above, nothing contained in this Agreement will detract from or otherwise
limit the Officer's right to or privilege of participation in any
restricted stock plan, bonus or incentive plan, stock option or purchase
plan, profit sharing, pension, group insurance, hospitalization or other
compensation or benefit plan or arrangement which may be or become
applicable to officers of the corporation resulting from such merger or
consolidation or the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of assets described
above, references to the Company in this Agreement shall unless the context
suggests otherwise, be deemed to include the entity resulting from such
merger or consolidation or the acquirer of such assets of the Company.
8. Payments. All payments provided for in this Agreement shall be paid in cash
in United States funds from the general funds of the Company and its
subsidiaries drawn on the United States location of a bank and paid in bank
or cashier's check. The Company shall not be required to establish a
special or separate fund or other segregation of assets to ensure such
payments.
All payments made by the Company to the Officer or the Officer's
dependents, beneficiaries or estate will be subject to the withholding of
such amounts relating to tax and/or other payroll deductions as may be
required by law.
9. Arbitration. In the event of a dispute between the parties as to the
interpretation or application of this Agreement, such dispute may be
submitted by the Officer or by the Company to binding arbitration before an
impartial arbitrator pursuant to the Rules of Commercial Arbitration of the
American Arbitration Association. The Officer shall be reimbursed promptly
by the Company for all travel and lodging expenses (that would be
reimbursable in accordance with the then current Company travel expense
reimbursement policy) incurred in connection with any such arbitration. In
addition, if the Officer prevails in any such arbitration proceeding, the
Company shall reimburse the Officer promptly for 100% of the fees and
expenses the Officer incurs in connection with any such arbitration,
including legal fees and filing and arbitrator's fees; if the Company
prevails in any such arbitration proceeding, the Company shall reimburse
the Officer promptly for 80% of the fees and expenses the Officer incurs in
connection with any such arbitration, including legal fees and filing and
arbitrator's fees; and if each party prevails in part, the Company shall
reimburse the Officer promptly for such percentage, not less than 80% and
not more than 100%, of the fees and expenses the Officer incurs in
connection with such arbitration, including legal fees and filing and
arbitrator's fees, as the arbitrator shall determine.
10. Assignment; Payment on Death. The provisions of this Agreement shall be
finding upon and shall inure to the benefit of the Officer, the Officer's
executors, administrators, legal representatives and assigns and the
Company and its successors.
There shall be no right of set-off or counterclaim, in respect of any
claim, debt or obligation, against any payments to the Officer, the
Officer's dependents, beneficiaries or estate provided for in this
Agreement.
In the event that the Officer becomes entitled to payments under this
Agreement and subsequently dies, all amounts payable to the Officer
hereunder and not yet paid to the Officer at the time of the Officer's
death shall be paid to the Officer's beneficiary. No right or interest to
or in any payments shall be assignable by the Officer; provided, however,
that this provision shall not preclude the Officer from designating one or
more beneficiaries to receive any amount that may be payable after the
Officer's death and shall not preclude the legal representatives of the
Officer's estate from assigning any right hereunder to the person or
persons entitled thereto under the Officer's will or, in the case of
intestacy, to the person or persons entitled thereto under the laws of
intestacy applicable to the Officer's estate. The term "beneficiary" as
used in this Agreement shall mean the beneficiary or beneficiaries so
designated by the Officer to receive such amount or, if no such beneficiary
is in existence at the time of the Officer's death, the legal
representative of the Officer's estate.
No right, benefit or interest hereunder shall be subject to anticipation,
alienation, sale, assignment, encumbrance, charge, pledge, hypothecation,
or set-off in respect of any claim, debt or obligation, or to execution,
attachment, levy or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified in the
immediately preceding sentence shall, to the full extent permitted by law,
be null, void and of no effect.
11. Modification. This Agreement may be modified only in a written instrument
agreed to and executed by the Company and the Officer.
12. Severability. If any provision of this Agreement shall, for any reason, be
held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
13. Headings of No Effect. The paragraph headings contained in this Agreement
are included solely for convenience of reference and shall not in any way
affect the meaning or interpretation of any of the provisions of this
Agreement.
14. Governing Law. This Agreement and its validity, interpretation, performance
and enforcement shall be governed by the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officers thereto duly authorized, and the Officer has signed
this Agreement, all as of the date first above written.
XXXXXX CORPORATION
By: /s/ NLGreenman
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Xxxxxx X. Xxxxxxxx, President
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Exhibit A
10/89
[ Xxxxxx Corporation Logo ]
NON-COMPETE AGREEMENT
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This agreement is made this _____ day of _____________, 19 __, by and between
Xxxxxx Corporation (hereinafter referred to as "Employer"), and
___________________________________, an individual hereinafter referred to as
"Employee") on behalf of themselves, and their heirs, successors and assigns
with reference to the following facts:
1. The employment policies of Employer frequently result in transfers and/or
reassignment of employees and changes in the duties and responsibilities of
employees. During the course of employment with Employer, and particularly
in view of either the nature of the original employment assignment or
future employment assignments, Employee may acquire knowledge of or
information relating to trade secrets and other confidential or proprietary
information of Employer including, without limitations, information about
products, processes, research, development, business plans, customer or
supplier identification, and product cost and profit information.
2. In order to protect Employer against disclosure of any such trade secrets
or information, Employee agrees, as further consideration for employment
hereunder, that for a period of two years after termination of employment
with Employer he/she will not, without first obtaining written permission
from the Chief Executive Officer of Employer, engage in, render services in
or become associated in any way in the research, development, manufacture,
use, or sale of any product in the United States which is the same as,
similar to or is based on the same field of technology and is competitive
with any product, development or research activity of Employer with respect
to which at any time during the two years preceding termination of
employment with Employer, Employee's work has been directly or indirectly
concerned or with respect to which Employee has acquired knowledge of any
such trade secrets or information.
In the event that the provisions of this paragraph (2) prevent Employee,
after the exercise of reasonable efforts by him, from obtaining employment
at a rate of compensation at least equal to the monthly rate of
compensation received by Employee at the end of his employment with
Employer, then Employer shall, within 30 days from receipt of written
notice from Employee in any month informing Employer of his inability to
obtain such compensation for that month, notify Employee that it will
either:
(a) pay to Employee for that month the differences between the
compensation received and the last regular monthly rate of
compensation at Employer, up to 30% of the last monthly rate; or
(b) notify Employee that it has waived its rights under this paragraph
(2).
After expiration of said two-year period after the end of Employee's
employment with Employer, or upon Employers' failure to notify Employee
of its election after receipt of notice from Employee, the restrictions
of this paragraph (2) shall no longer be in force.
3. In the event that Employee is assigned by Employer to work for any other
company or organization which is a subsidiary or joint venture of or is
otherwise affiliated with Employer, such employment shall be deemed to be
employment by Employer for the purpose of this Agreement.
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Employee Date
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Human Resources Date
CONFIRMATION AND AMENDMENT OF
OFFICER SPECIAL SEVERANCE AGREEMENT
This agreement confirms and amends that certain Officer Special
Severance Agreement (the "Agreement") dated October 2, 1991 by and between
Xxxxxx Corporation, a Massachusetts corporation (the "Company") and Xxxxxx X.
Xxxxxx (the "Officer").
1. The position and/or title held by the Officer with the Company has changed
since the date the Agreement initially was entered into. Therefore, the
parties hereby confirm that the Agreement shall apply to the Officer in his
current position and/or title as fully as it did to him in his prior
position and/or title, and is to be interpreted as though it were entered
into with him in his current position and/or title.
2. The parties hereby acknowledge and agree that, in the event of any further
changes in the position and/or title of the Officer subsequent to the date
hereof, the Agreement nevertheless shall be deemed to continue to apply to
the Officer fully and completely, so long as he continues to hold any
office to which he has been elected or appointed by the Board of Directors
of the Company or a duly constituted committee thereof.
3. Other than as stated above, the Agreement shall continue in full force and
effect.
XXXXXX CORPORATION Officer:
By: /s/ WEBoomer /s/ Xxxxxx X. Xxxxxx
---------------------------------- ------------------------------
Xxxxxx X. Xxxxxx, Chairman Xxxxxx X. Xxxxxx
of the Board of Directors and
Chief Executive Officer
Dated: March 10, 2004
