Exhibit 10.14
EMPLOYMENT AGREEMENT
AGREEMENT, by and between Polaroid Corporation, a Delaware
corporation, together with its successors and assigns permitted under this
Agreement (the "Company"), and Xxxx X. XxXxxxxxx (the "Executive") originally
entered into October 20, 1995, is hereby amended and restated this 25th day
of January 2000 and will be effective January 1, 2000.
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive and to enter into
an agreement embodying the terms of such employment (this "Agreement") and the
Executive desires to enter into this Agreement and to accept such employment,
subject to the terms and provisions of this Agreement; and
WHEREAS, the Executive is a skilled and dedicated employee who has
important management responsibilities and talents which benefit the Company, the
Company believes that its best interests will be served if the Executive is
encouraged to remain with the Company. The Company has determined that the
Executive's ability to perform the Executive's responsibilities and utilize the
Executive's talents for the benefit of the Company, and the Company's ability to
retain the Executive as an employee, will be significantly enhanced if the
Executive is provided with fair and reasonable protection from the risks of a
change in ownership or control of the Company.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive (individually a
"Party" and together the "Parties") agree as follows:
1. DEFINITIONS.
(a) "ACQUIRING PERSON" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, is the
Beneficial Owner of twenty percent (20%) or more of the Stock
then outstanding, but does not include any Subsidiary of the
Company, any employee benefit plan of the Company or any of its
Subsidiaries or any Person holding Stock for or pursuant to the
terms of any such employee benefit plan.
(b) "AFFILIATE" and "ASSOCIATE" when used with reference to any
Person, shall have the meaning given to such terms in Rule 12b-2
of the General Rules and Regulations under the Exchange Act.
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(c) "ANNUAL BONUS" shall mean a bonus amount payable under the
Company's executive annual bonus plan (currently the Polaroid
Incentive Plan for Executives). Unless otherwise specifically
provided, this annual bonus shall be calculated assuming the
Company target has been achieved and that there are no factors
that reduce the ultimate distribution.
(d) "BASE SALARY" shall mean the annual rate of base salary
(disregarding any reduction in such rate that constitutes
Constructive Termination) as provided for in Section 4 below, as
increased by the Board from time to time.
(e) "BENEFICIAL OWNER" shall be a Person deemed to "beneficially own"
any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly; or
(ii) which such Person or any of such Person's Affiliates or
Associates has:
(A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (written
or oral), or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of
such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or
exchange thereunder; or,
(B) the right to vote pursuant to any agreement,
arrangement or understanding (written or oral);
provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding
(written or oral) to vote such security (i) arises
solely from a revocable proxy given to such Person in
response to a public proxy
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or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations
under the Exchange Act and (ii) is not also then
reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or,
(C) which are beneficially owned, directly or indirectly,
by any Person with which such Person or any of such
Person's Affiliates or Associates has any agreement,
arrangement or understanding (written or oral), for the
purpose of acquiring, holding, voting (except pursuant
to a revocable proxy as described in Section
l(e)(ii)(B) of this Agreement) or disposing of any
securities of the Company.
(f) "BOARD" shall mean the Board of Directors of the Company.
(g) "CAUSE" means either of the following:
(i) Executive's willful malfeasance having a material adverse
effect on the Company; or,
(ii) Executive's conviction of a felony;
provided, that any action or refusal by Executive shall not
constitute "Cause" if, in good faith, Executive believed such
action or refusal to be in, or not opposed to, the best interests
of the Company, or if Executive shall be entitled, under
applicable law or under an applicable Certificate of
Incorporation or By-Laws of the Company, as they may be amended
or restated from time to time, to be indemnified with respect to
such action or refusal.
(h) "CHANGE IN CONTROL" shall mean:
(i) the date on which a change in control of the Company occurs
of a nature that would be required to be reported (assuming
that the Company's Stock was registered under the Exchange
Act) in response to an item (currently item 6(e)) of
Schedule 14A of Regulation 14A promulgated under the
Exchange Act or an item (currently Item l(a)) of Form 8-K
under the Exchange Act;
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(ii) the date on which there is a change in the composition of
the Board such that the individuals who, as of the effective
date of this Agreement, constitute the Board (such Board
shall be hereinafter referred to as the "Incumbent Board")
cease for any reason to constitute at least a majority of
the Board; PROVIDED, HOWEVER, that for purposes of this
definition, any individual who becomes a member of the Board
subsequent to the effective date of this Agreement, whose
election, or nomination for election, by the Company's
stockholders was approved by a vote of at least seventy-five
percent (75%) of those individuals who are members of the
Board and who were also members of the Incumbent Board (or
deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the
Incumbent Board; and PROVIDED FURTHER, HOWEVER, that any
such individual whose initial assumption of office occurs as
a result of or in connection with 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 other actual or threatened solicitation of proxies or
consents by or on behalf of an entity other than the Board
shall not be so considered as a member of the Incumbent
Board;
(iii) any day on or after the Share Acquisition Date when,
directly or indirectly, any of the transactions specified in
the following clauses occurs:
(A) the Company shall consolidate with, or merge with and
into, any other Person;
(B) any Person shall merge with and into the Company; or
(C) the Company shall sell, lease, exchange or otherwise
transfer or dispose of (or one or more of its
Subsidiaries shall sell, lease, exchange or otherwise
transfer or dispose of), in one or more transactions,
the major part of the assets of the Company and its
Subsidiaries (taken as a whole) to any other Person or
Persons;
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(iv) the date when a Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or any of its Subsidiaries or any Person holding
Stock for or pursuant to the terms of any such employee
benefit plan) alone or together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of
thirty percent (30%) or more of the Stock then outstanding;
(v) the date on which the stockholders of the Company approve a
merger or consolidation of the Company with any other
corporation other than:
(A) a merger or consolidation which would result in voting
securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving or parent entity) fifty
percent (50%) or more of the combined voting power of
the voting securities of the Company or such surviving
or parent entity outstanding immediately after such
merger or consolidation; or,
(B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no Person acquires fifty percent
(50%) or more of the combined voting power of the
Company's then outstanding securities; or
(vi) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of
the Company's assets (or any transaction having a similar
effect).
(i) "CODE" means the Internal Revenue Code of 1986, as amended.
(j) "CONFIDENTIAL INFORMATION" means nonpublic information relating
to the business plans, marketing plans, customers or employees of
the Company other than information the disclosure of which cannot
reasonably be expected to adversely affect the business of the
Company.
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(k) "CONSTRUCTIVE TERMINATION" shall occur when the Executive
voluntarily terminates his employment with the Company or retires
after the occurrence of one or more of the following events:
(i) unless effected with the Executive's consent, a reduction in
the Executive's Base Salary or the discontinuation of or any
reduction in the Executive's participation or membership in
any bonus, incentive or other benefit plan in which the
Executive was a participant or member, without an
economically equivalent replacement;
(ii) the reassignment of the Executive without his consent to a
location more than thirty (30) miles from his regular
workplace;
(iii) the reduction in the Executive's job title or level;
(iv) the provision of significantly less favorable working
conditions; or
(v) a significant diminution of duties or responsibilities or
the reassignment of the Executive to duties which represent
a position of lesser responsibility.
(l) "DISABILITY" shall mean the Executive's disability within the
meaning of the Polaroid Long Term Disability Plan.
(m) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
in effect on the date in question.
(n) "PERSON" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or
other entity.
(o) "SEVERANCE PERIOD" shall mean the period of thirty-six (36)
months following such termination.
(p) "SHARE ACQUISITION DATE" shall mean the first date any Person
shall become an Acquiring Person.
(q) "STOCK" shall mean the outstanding shares of Common Stock of the
Company and any other shares of capital stock of the Company into
which the Common Stock shall be reclassified or changed.
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(r) "SUBSIDIARY" of the Company shall mean any corporation of which
the Company owns, directly or indirectly, more than fifty percent
(50%) of the Voting Stock.
(s) "SUPPLEMENTAL PLANS" shall mean any and all Company non-qualified
benefit plans including, but not limited to, any supplemental
retirement plan.
(t) "TERM OF EMPLOYMENT" shall mean the period specified in Section 2
below.
(u) "TRADING DAY" is any day on which the Stock is traded on the New
York Stock Exchange.
(v) "TERMINATION DATE" shall mean the date of the Executive's
termination of employment from the Company.
(w) "VOTING STOCK" shall mean capital stock of any class or classes
having general voting power under ordinary circumstances, in the
absence of contingencies, to elect the directors of a
corporation.
2. TERM OF EMPLOYMENT. The Company hereby employs the Executive, and the
Executive hereby agrees to continue his employment for three (3) years
ending January 1, 2003, subject to earlier termination as provided below.
3. POSITION, DUTIES AND RESPONSIBILITIES.
(a) TERM. During the Term of Employment, the Executive shall be employed
as the Chief Executive Officer of the Company and be responsible for
the general management of the affairs of the Company. It is the
intention of the Parties that the Executive shall be elected to and
serve as a member of the Board and shall be Chairman of the Board. The
Executive, in carrying out his duties under this Agreement, shall
report to the Board.
(b) OTHER POSITIONS. Anything herein to the contrary notwithstanding,
nothing shall preclude the Executive from:
(i) serving, subject to approval of the Board, on the boards of
directors of a reasonable number of other corporations or the
boards of a reasonable number of trade associations and/or
charitable organizations;
(ii) engaging in charitable activities and community affairs; and,
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(iii) managing his personal investments and affairs, provided that
such activities do not interfere with the proper performance of
his duties and responsibilities as the Company's Chairman and
Chief Executive Officer.
4. BASE SALARY. The Executive shall be paid an annualized Base Salary of at
least $785,000, payable in accordance with the regular payroll practices of
the Company. The Base Salary shall be reviewed periodically by the Board.
5. ANNUAL BONUS. The Executive shall participate in the Company's annual bonus
plan using the targets and performance factors set forth in the Company's
annual bonus plan, with an annual target award opportunity of at least
eighty percent (80%) of Base Salary.
6. EMPLOYEE BENEFIT PROGRAMS. During the Term of Employment, the Executive
shall be entitled to participate in all employee pension and welfare
benefit plans and programs made available to the Company's senior level
executives, as such plans or programs may be in effect from time to time,
including, without limitation, long term incentive plan(s), pension,
savings and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life insurance.
Notwithstanding anything in this Agreement to the contrary, the terms of
this Agreement shall replace the Executive's participation in The Polaroid
Extended Severance Plan.
7. SUPPLEMENTAL PENSION. The Executive shall receive a retirement benefit that
is equal to the greater of (a) or (b) below:
(a) the final average pay plan benefit as determined pursuant to Article V
"Transitional Pension Benefit" of the Polaroid Pension Plan as
enhanced pursuant to the terms of this Agreement (specifically
Paragraph 7(c) below, and Paragraphs 11 and 12 as applicable); or
(b) the pension benefit calculated as a cash balance benefit pursuant to
Article IV "Pension Benefit" of the Polaroid Pension Plan as enhanced
pursuant to the terms of this Agreement (specifically Paragraph 7(c)
below, and Paragraphs 11 and 12 as applicable)
(c) After any additional credit which may become applicable under
provisions set forth in Sections 11 and 12, the Company shall provide
the Executive an additional monthly retirement benefit pursuant to the
terms of this Agreement which shall be equal to the excess of:
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(i) the monthly pension benefit that would be payable to the
Executive under the terms of the Polaroid Pension Plan enhanced
by the benefits under the Polaroid Retirement Parity Plan and the
Polaroid Executive Equalization Retirement Plan and any successor
plans thereto as in effect on the date hereof (collectively the
"Retirement Plan"), assuming that the Executive is credited with
one (1) additional year of service for each of his first ten (10)
years of actual service with the Company over
(ii) the monthly benefit under the Retirement Plan which is actually
payable to the Executive without regard to this Section 7
(in its entirety "Supplemental Pension"). In determining the amount of
any offset as provided in the preceding sentence, such amount shall be
calculated assuming the same frequency of payment, the same form of
annuity and the same commencement date of payment as the benefits to
be paid under this Section 7. This benefit shall be provided pursuant
to the Supplemental Retirement Benefit Plan.
8. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES. The Executive is authorized
to incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement and the Company shall promptly
reimburse him for all business expenses incurred in connection with
carrying out the business of the Company, subject to documentation in
accordance with the Company's policy.
9. TERMINATION DUE TO DISABILITY OR DEATH. In the event the Executive's
employment is terminated due to his Disability or death, he, or his estate
or his beneficiaries, as the case may be, shall be entitled to:
(a) SALARY. Base Salary through the date of termination;
(b) ANNUAL BONUS. Pro-rata portion of the Annual Bonus for the year in
which the Executive's Disability or death occurs (Annual Bonus is to
be paid as soon as practicable or consistent with the Executive's
election under the Elective Deferred Compensation Plan); and,
(c) OTHER BENEFITS. Other benefits or entitlements in accordance with
applicable plans and programs of the Company.
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10. TERMINATION BY THE COMPANY FOR CAUSE. In the event the Company terminates
the Executive's employment for Cause, he shall be entitled to:
(a) SALARY. Base Salary through the date of the termination of his
employment for Cause;
(b) ANNUAL BONUS. Other benefits or entitlements, if any, in accordance
with applicable plans or programs of the Company; however,
notwithstanding the foregoing, the Executive shall not be entitled to
any bonus (annual or long term) for the year in which his termination
occurs.
11. A CONSTRUCTIVE TERMINATION OR A TERMINATION WITHOUT CAUSE. If prior to
Change in Control, the Executive's employment is terminated without Cause,
other than due to Disability or death, or in the event there is a
Constructive Termination, the Executive, upon the execution of a full and
complete release, shall be entitled to:
(a) SALARY. Base Salary through the date of termination of the Executive's
employment;
(b) SEVERANCE PAYMENT. Base Salary, at the annualized rate in effect on
the date of termination of the Executive's employment for the
Severance Period;
(c) TRANSITIONAL ASSISTANCE PAYMENTS. The Executive shall receive a
transitional assistance payment up to a maximum of two hundred fifty
thousand dollars ($250,000) based on the performance of the Executive.
This determination shall be made by the Human Resources Committee of
the Board of Directors, in its sole and complete discretion. The
transitional assistance payment, once determined, is payable in a lump
sum as soon as practicable after the Executive's termination;
(d) ANNUAL BONUS. Annual Bonus payments for the period from the beginning
of the year in which the termination occurs through the end of the
Severance Period based on the actual performance of the Company (i.e.,
Company target) without regard to any other factors that could reduce
the ultimate distribution; any such payment for a period of less than
a full year shall be pro-rated by the number of days for which payment
is made;
(e) RESTRICTED STOCK AND OPTIONS. Full vesting of all restricted stock,
and stock options and phantom stock options (collectively "Options")
with the lesser of three (3) years from his Termination Date or ten
(10)
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years from the date the Options were granted in which to exercise his
Options pursuant to the terms of the Executive's Option or
Supplemental Option Agreements;
(f) INSURANCE. Medical, dental and executive life insurance benefits
(collectively "Insurance Benefits") at the same rate as active
employees similarly situated for a period equal to the lesser of
thirty-six (36) months following the Executive's Termination Date or
until the Executive is eligible to receive comparable Insurance
Benefits through another employer (this benefit shall run coterminous
with COBRA rights);
(g) DISABILITY COVERAGE. Short- and long-term disability coverage that is
reasonably comparable to the coverage provided to the Executive on his
Termination Date and which can be purchased on the open market shall
be for a period equal to the lesser of thirty-six (36) months
following the Executive's Termination Date or until the Executive is
eligible to receive comparable benefits through another employer;
(h) OUTPLACEMENT COUNSELING. Outplacement services will be provided
consistent with the Company's outplacement practices in effect prior
to the Change in Control;
(i) SUPPLEMENTAL RETIREMENT AND PROFIT SHARING BENEFITS.
(i) On the Termination Date, the Executive shall become vested in the
benefits provided under the Company's Supplemental Plans.
(ii) Within ten (10) business days after the Termination Date, the
Company shall pay the Executive a lump sum cash amount equal to
the present value of the Executive's accrued benefit under the
Supplemental Plans. For purposes of computing the Executive's
accrued benefit under the Supplemental Plans, in addition to the
supplemental benefit provided pursuant to Section 7 above:
(A) and before applying Section 7 of this Agreement, the
Company shall credit the Executive with three (3) years
of plan participation and service and three (3) years of
age for all purposes (including additional accruals and
eligibility for early retirement) over the Executive's
actual years and fractional years of plan participation
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and service and age credited to the Executive on the
Termination Date; and,
(B) the Company shall apply the present value (and any other
actuarial adjustment required by this Agreement) using the
applicable actuarial assumptions set forth in the Polaroid
Pension Plan.
This benefit shall be provided pursuant to the Supplemental Retirement
Benefit Plan.
(j) OTHER BENEFITS. Other benefits or entitlements in accordance with
applicable plans and programs of the Company; and,
(i) SURVIVOR BENEFITS. Should the Executive become eligible to receive
payments and benefits under this Section and die prior to receipt of
all such payments and benefits, the residual payments shall be made to
the Executive's beneficiary(ies). Any residual family medical and
dental benefits which the Executive was receiving on the Executive's
date of death shall continue to the family members the Executive had
covered in such medical and dental plans on such date.
12. TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. Notwithstanding
anything in this Agreement to the contrary, if the Executive's employment
terminates (voluntarily or involuntarily) within eighteen (18) months
following a Change in Control for any reason other than Cause he shall be
entitled to the following benefits:
(a) SEVERANCE BENEFITS. Within ten (10) business days after the
Termination Date, the Company shall pay the Executive a lump sum
amount, in cash, equal to:
(i) three (3) times the sum of:
(A) the Executive's Base Salary; and
(B) the Executive's Annual Bonus; and
(ii) the Executive's Annual Bonus multiplied by a fraction, the
numerator of which shall equal the number of days the Executive
was employed by the Company in the calendar year in which the
Termination Date occurs and the denominator of which shall equal
three hundred sixty five (365).
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(b) INSURANCE. Until the third (3rd) anniversary of the Termination Date,
the Executive shall be entitled to participate in the Company's
medical, dental, and executive life insurance benefits, at the highest
level provided to the Executive during the period beginning
immediately prior to the Change in Control and ending on the
Termination Date and at no greater cost than the cost the Executive
was paying immediately prior to Change in Control; provided, however,
that if the Executive becomes employed by a new employer, the
Executive's coverage under the applicable Company plans shall
continue, but the Executive's coverage thereunder shall be secondary
to (i.e., reduced by) any benefits provided under like plans of such
new employer.
(k) DISABILITY COVERAGE. Short- and long-term disability coverage that is
reasonably comparable to the coverage provided to the Executive on his
Termination Date and which can be purchased on the open market shall
be for a period equal to the lesser of thirty-six (36) months
following the Executive's Termination Date or until the Executive is
eligible to receive comparable benefits through another employer;
(c) PAYMENT OF ACCRUED BUT UNPAID AMOUNTS. Within ten (10) business days
after the Termination Date, the Company shall pay the Executive:
(i) Earned, but unpaid compensation, including, without limitation,
any unpaid portion of the bonus accrued with respect to the full
calendar year ended prior to the Termination Date; and,
(ii) all compensation previously deferred by the Executive on a
non-qualified basis but not yet paid.
(d) RETIREE-MEDICAL BENEFITS. If within three (3) years after Change in
Control, the Executive would be at least fifty-five (55) with the
Executive's age and service equal to sixty-five (65) and the Executive
would have at least five (5) years of service with the Company, the
Executive shall be eligible for retiree medical benefits (as such are
determined immediately prior to Change in Control). The Executive
shall commence receiving such retiree medical benefits based on the
terms and conditions of the applicable plans in effect immediately
prior to the Change in Control.
(e) SUPPLEMENTAL RETIREMENT AND PROFIT SHARING BENEFITS.
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(i) On the Termination Date, the Executive shall become vested in the
benefits provided under the Company's Supplemental Plans.
(ii) Within ten (10) business days after the Termination Date, the
Company shall pay the Executive a lump sum cash amount equal to
the present value of the Executive's accrued benefit under the
Supplemental Plans. For purposes of computing the Executive's
accrued benefit under the Supplemental Plans in addition to the
supplemental benefit provided pursuant to Section 7 above:
(A) and before applying Section 7 of this Agreement, the Company
shall credit the Executive with three (3) years of plan
participation and service and three (3) years of age for all
purposes (including additional accruals and eligibility for
early retirement) over the Executive's actual years and
fractional years of plan participation and service and age
credited to the Executive on the Termination Date; and,
(B) the Company shall apply the present value (and any other
actuarial adjustment required by this Agreement) using the
applicable actuarial assumptions set forth in the Polaroid
Pension Plan.
In determining the Executive's benefits under this subsection
12(e), the terms of the Supplemental Plans as in effect
immediately prior to the Change in Control, except as expressly
modified in this subsection 12(e), shall govern. This benefit
shall be provided pursuant to the Supplemental Retirement Benefit
Plan.
(f) OUTPLACEMENT COUNSELING. Outplacement services will be provided
consistent with the Company's outplacement practices in effect prior
to the Change in Control.
(g) RESTRICTED STOCK AND OPTIONS. Full vesting of all restricted stock and
stock options and phantom stock options (collectively "Options") with
the lesser of three (3) years from his Termination Date or ten (10)
years from the date the Options were granted in which to exercise his
Options pursuant to the terms of the Executive's Option or
Supplemental Option Agreement;
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(the terms of this acceleration are set forth in draft in a
Supplemental Agreement attached as Exhibit A);
(h) PERFORMANCE SHARES. Full payout of Performance Shares issued under the
1993 Stock Incentive Plan, or any successor plan, assuming the
Company's objectives were achieved at target (the terms of this
acceleration are set forth in draft in a Supplemental Agreement
attached as Exhibit B); and,
(i) COSTS OF PROCEEDINGS. The Company shall pay all of the Executive's
costs and expenses, including attorneys' fees and disbursements, at
least monthly, in connection with any legal proceeding (including
arbitration), whether or not instituted by the Company or the
Executive, relating to the interpretation or enforcement of any
provision of this Agreement, except that if the Executive instituted
the proceeding and the judge, arbitrator or other individual presiding
over the proceeding affirmatively finds that the Executive instituted
the proceeding in bad faith, the Executive shall pay his own costs and
expenses, including attorneys' fees and disbursements. The Company
shall pay pre-judgment interest on any money judgment obtained by the
Executive as a result of such a proceeding, calculated at the prime
rate of The Chase Manhattan Bank (or its successors), as in effect
from time to time, from the date that payment should have been made to
the Executive under this Section.
13. INDEMNIFICATION; DIRECTOR'S AND OFFICER'S LIABILITY INSURANCE. The
Executive shall, after the Termination Date, retain all rights to
indemnification under applicable law or under the Company's Certificate of
Incorporation or By-Laws, as they may be amended or restated from time to
time. In addition, the Company shall maintain Director's and Officer's
liability insurance on behalf of the Executive, at the better of the level
in effect immediately prior to the Change in Control or the Executive's
Termination Date, for the three (3) year period following the Termination
Date, and throughout the period of any applicable statute of limitations.
14. EFFECT ON EXISTING PLANS. All Change in Control provisions applicable to
the Executive and contained in any plan, program, agreement or
arrangement maintained as of the date this Agreement is signed
(including, but not limited to, any stock option, restricted stock or
pension plan) shall remain in effect through the date of a Change in
Control, and for such period thereafter as is necessary to carry out
such provisions and provide the benefits payable thereunder, and may not
be altered in a manner which adversely affects the Executive without the
Executive's prior written approval. This means that all awards of
options, performance shares or such other awards as may be granted shall
upon Change in Control be fully vested consistent with these terms.
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Notwithstanding the foregoing, no benefits shall be paid to the Executive,
however, under the Polaroid Extended Severance Plan or any other severance
plan maintained generally for the employees of the Company if the Executive
is eligible to receive severance benefits under this Agreement.
15. MITIGATION. Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise, and compensation earned from such employment or
otherwise shall not reduce the amounts otherwise payable under this
Agreement. No amounts payable under this Agreement shall be subject to
reduction or offset in respect of any claims which Polaroid (or any other
Person or entity) may have against Executive unless specifically referenced
herein.
16. GROSS-UP.
(a) In the event it shall be determined that any payment, benefit or
distribution (or combination thereof) by the Company, or one or more
trusts established by the Company for the benefit of its employees, 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) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties incurred by
the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, hereinafter
collectively referred to as the "Excise Tax"), 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, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and the 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
Payments.
(b) Subject to the provisions of Section 16(c), all determinations
required to be made under this Section 16, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized certified
public accounting firm as may be designated by the Executive (the
"Accounting Firm") which shall provide detailed supporting
calculations both to the
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Company and the Executive within fifteen (15) business days of the
receipt of notice from the Executive that there has been a Payment, or
such earlier time as is requested by the Company. In the event that
the Accounting Firm is serving as accountant or auditor for an
individual, entity or group effecting the change in ownership or
effective control (within the meaning of Section 280G of the Code),
the Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this Section
16, shall be paid by the Company to the Executive within five (5)
business days after the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall so indicate to the Executive in
writing. Any determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should
have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts
its remedies pursuant to Section 16(c) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and
any such Underpayment shall be promptly paid by the Company to or for
the Executive's benefit.
(c) The Executive shall notify the Company in writing of any written
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later
than ten (10) business days after the Executive is informed in
writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be
paid (but the Executive's failure to comply with this notice
obligation shall not eliminate his rights under this Section except
to the extent of the Company's defense against the imposition of
the Excise Tax is actually prejudiced by any such failure). The
Executive shall not pay such claim prior to the expiration of the
thirty (30) day period following the date on which he gives such
notice to the
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Company (or such shorter period ending on the date that any payment
of taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give 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 to effectively
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 or income tax
(including interest and penalties with respect thereto)
imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing
provisions of this Section 16(c), the Company shall control
all proceedings taken in connection with such contest and, at
its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at
its sole option, either direct 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 reasonably 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
or income tax (including interest or penalties
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with respect thereto) imposed with respect to such advance or
with respect to any imputed income with respect to such
advance; and provided, further, that if the Executive is
required to extend the statute of limitations to enable the
Company to contest such claim, the Executive may limit this
extension solely to such contested amount. The Company's
control of the contest 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 Executive receives an amount advanced by the Company
pursuant to Section 16(c), the Executive receives any refund with
respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 16(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
Executive receives an amount advanced by the Company pursuant to
Section 16(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 thirty (30) days after
such determination, then such advance shall be forgiven and shall not
be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be
paid.
17. TERMINATION FOR CAUSE. Nothing in this Agreement shall be construed to
prevent the Company from terminating the Executive's employment for Cause.
If the Executive is terminated for Cause, only Section 10 shall apply.
18. DISPUTES. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in Boston,
Massachusetts in accordance with the Rules of the American Arbitration
Association then in effect. Judgment may be entered on an arbitrator's
award relating to this Agreement in any court having jurisdiction.
19. NONCOMPETITION AND CONFIDENTIALITY.
(a) NONCOMPETITION. During the period in which the Executive is employed
by the Company or any of its Subsidiaries and during any Severance
Period, as provided pursuant to Section 11 "A Constructive
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Termination or a Termination without Cause", above, but in no event
for a period of less than twelve (12) months following a
termination of his employment, the Executive shall not engage in
any activity directly or indirectly with Xxxxxxx Kodak Company, or
Fuji, whether as a principal, partner, employee, consultant,
shareholder (other than as a holder of not in excess of one percent
(1%) of the outstanding voting shares of any publicly traded
company) or otherwise.
(b) CONFIDENTIALITY. Without the prior written consent of the Company,
except to the extent required by an order of a court having competent
jurisdiction or under subpoena from an appropriate government agency,
the Executive shall comply with the Confidentiality Agreement he
executed at the time he was hired and shall not disclose any trade
secrets, customer lists, drawings, designs, information regarding
product development, marketing plans, sales plans, manufacturing
plans, management organization information (including data and other
information relating to members of the Board and management),
operating policies or manuals, business plans, financial records or
other financial, commercial, business or technical information
relating to the Company or any of its Subsidiaries or information
designated as confidential or proprietary that the Company or any of
its Subsidiaries may receive belonging to suppliers, customers or
others who do business with the Company or any of its Subsidiaries
(collectively, "Confidential Information") to any third Person unless
such Confidential Information has been previously disclosed to the
public by the Company or is in the public domain (other than by reason
of Executive's breach of this Section 19(b)).
(c) COMPANY PROPERTY. Promptly following the Executive's termination of
employment, the Executive shall return to the Company all property of
the Company, and all copies thereof in Executive's possession or under
his control.
(d) NONSOLICITATION OF EMPLOYEES. During the period in which the Executive
is employed by the Company or any of its Subsidiaries, and for a
period of twenty-four (24) months following the Executive's
Termination Date resulting from a termination as provided in Section
11 "A Constructive Termination or a Termination without Cause", the
Executive shall not, directly or indirectly, induce any employee of
the Company or any of its Subsidiaries to terminate employment with
such
20 of 24
entity, and shall not, directly or indirectly, either individually
or as owner, agent, employee, consultant or otherwise, employ or
offer employment to any Person who is employed by the Company or a
Subsidiary thereof.
(e) INJUNCTIVE RELIEF WITH RESPECT TO COVENANTS. Executive acknowledges
and agrees that the covenants and obligations of the Executive with
respect to noncompetition, nonsolicitation, confidentiality and
Company property relate to special, unique and extraordinary matters,
including his own skills, and that a violation of any of the terms of
such covenants and obligations will cause the Company irreparable
injury for which adequate remedies are not available at law.
Therefore, the Executive agrees that the Company shall be entitled to
an injunction, restraining order or such other equitable relief
(without the requirement to post bond) restraining Executive from
committing any violation of the covenants and obligations contained in
this Section 19. These injunctive remedies are cumulative and are in
addition to any other rights and remedies the Company may have at law
or in equity.
(f) PROVISIONS SURVIVING BEYOND TERMINATION DATE. The obligations of the
Executive set forth in Subsections (a) ("Noncompetition") and (d)
("Nonsolicitation of Employees") above shall not extend beyond his
Termination Date where such date follows a Change in Control.
20. EFFECT OF AGREEMENT ON OTHER BENEFITS. Except as specifically provided in
this Agreement, the existence of this Agreement shall not prohibit or
restrict the Executive's entitlement to full participation in the employee
benefit and other plans or programs in which senior executives of the
Company are eligible to participate.
21. ASSIGNMENT. Except as otherwise provided herein, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the Company
and the Executive and their respective heirs, legal representatives,
successors and assigns. If the Company shall be merged into or
consolidated with another entity, the provisions of this Agreement shall
be binding upon and inure to the benefit of the entity surviving such
merger or resulting from such consolidation. The Company will require
any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business
or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform
this Agreement in the same
21 of 24
manner and to the same extent that the Company would be required
to perform it if no such succession had taken place. The provisions of this
Agreement shall continue to apply to each subsequent employer hereunder in
the event of any subsequent merger, consolidation or transfer of assets of
such subsequent employer.
22. REPRESENTATION. The Company represents and warrants that it is fully
authorized and empowered to enter into this Agreement and each of the
parties represents and warrants that the performance of the obligations of
such party under this Agreement will not violate any agreement between that
party and any other Person, firm or organization.
23. ENTIRE AGREEMENT. This Agreement, with the plans and grant agreements
referenced herein, contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings,
whether written or oral, between the Parties with respect thereto.
24. AMENDMENT OR WAIVER. No provision in this Agreement may be amended unless
such amendment is agreed to in writing and signed by the Executive and an
authorized officer of the Company. No waiver by either Party of any breach
by the other Party of any condition or provision contained in this
Agreement to be performed by such other Party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive
or an authorized officer of the Company, as the case may be.
25. SEVERABILITY. In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole
or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
26. SURVIVORSHIP. The respective rights and obligations of the Parties
hereunder shall survive any termination of the Executive's employment to
the extent necessary to the intended preservation of such rights and
obligations.
27. BENEFICIARIES/REFERENCES. The Executive shall be entitled to select (and
change, to the extent permitted under any applicable law) a beneficiary
or beneficiaries to receive any compensation or benefit payable
hereunder following the Executive's death by giving the Company written
notice thereof. In the event of the Executive's death or a
22 of 24
judicial determination of his incompetence, reference in this Agreement to
the Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative. Absent any written
notice the beneficiary shall be the Executive's estate.
28. GOVERNING LAW. This Agreement shall be governed by, construed, and
interpreted in accordance with the laws of Massachusetts without reference
to principles of conflict of laws.
29. NOTICES. Any notice given to a Party shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed
to the Party concerned at the address indicated below or to such changed
address as such Party may subsequently give such notice of:
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If to the Company:
Polaroid Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Vice President, Human Resources
If to the Executive:
Xxxx X. XxXxxxxxx
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
30. HEADINGS. The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning
or construction of any provision of this Agreement.
31. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts.
32. WITHHOLDING. The Company may, to the extent required by law, withhold
applicable federal, state and local income and other taxes from any
payments due to the Executive hereunder.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
POLAROID CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President of
Human Resources
/s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. XxXxxxxxx
