EXHIBIT 10.23
LETTERHEAD OF ATLANTIS PLASTICS, INC.
December 31, 2002
Xx. Xxxxxxx X. Xxxx
President and Chief Executive Officer
Atlantis Plastics, Inc.
0000 Xxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Dear Xxxx:
This letter agreement amends and restates in its entirety that certain
letter agreement (the "Old Change in Control Agreement"), dated August 2, 1999,
between you and Atlantis Plastics, Inc. From and after the date first listed
above (December 31, 2002), all of your rights and Atlantis' obligations set
forth in the Old Change in Control Agreement are hereby canceled and this letter
agreement sets forth all of your rights with respect to the subject matter
hereof.
Atlantis considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, our Board of Directors (the "Board") recognizes that, as is the
case with many publicly held corporations, the possibility of a change in
control of the Corporation may exist and that this possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of management personnel to the detriment of the
Corporation and its stockholders. The Board has determined that appropriate
steps should be taken to reinforce and encourage the continued attention and
dedication of members of the Corporation's management, including you, to their
assigned duties without the distractions which may arise from the possibility of
a change in control of the Corporation. In order to induce you to remain in the
employ of the Corporation, you shall receive the severance benefits set forth in
this Agreement in the event your employment with the Corporation is terminated
under the circumstances described below subsequent to a Change in Control.
1. Interpretation of this Agreement.
(a) Terms Defined. As used herein, the following terms when used
in this Agreement have the meanings set forth below:
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Exchange Act.
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December 31, 2002
Page 2
"Agreement" shall have the meaning given to it in the preface
above.
"Applicable Rate" shall have the meaning given to it
Section 5(d) below.
"Atlantis" or "Corporation" means Atlantis Plastics, Inc., a
Florida corporation, and any successor to its business and/or assets as set
forth in Section 6(a) below which assumes and agrees to perform this Agreement
by operation of law, or otherwise and, as the context may require, with respect
to any provision of this Agreement other than Section 3 below, includes any
direct or indirect subsidiary of Atlantis Plastics, Inc.
"Board" shall have the meaning given to it in the preface
above.
"Cause" shall have the meaning given to it Section 4(c) below.
"Change in Control" shall have the meaning given to it
Section 3 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Continuing Directors" shall have the meaning given to it in
Section 3 below.
"Date of Termination" shall have the meaning given to it
Section 4(f) below.
"Disability" shall have the meaning given to it Section 4(b)
below.
"Employment Agreement" means the Employment Agreement, dated
as of the date hereof, as heretofore amended and as the same may hereafter be
supplemented, amended or amended and restated at any time prior to the
occurrence of a Change in Control.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" shall have the meaning given to it Section 5(d)
below.
"Good Reason" shall have the meaning given to it Section 4(d)
below.
"Gross-Up Payment" shall have the meaning given to it
Section 5(d) below.
"Notice of Termination" shall have the meaning given to it
Section 4(e) below.
"Person" has the meaning set forth in Sections 13(d) and 14(d)
of the Exchange Act.
"Retirement Plans" means the Atlantis Plastics, Inc. 401(k)
Plan and any supplementary executive retirement plans of the
Corporation you may be covered under, or any successor plans.
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December 31, 2002
Page 3
"Securities Act" means the Securities Act of 1933, as amended.
"Severance Payments" shall have the meaning given to it
Section 5(d) below.
"Trivest" means Trivest, Inc., a Delaware corporation.
"Welfare Plan Benefits" shall have the meaning given to it
Section 5(c) below.
(b) Interpretation. The words "herein," "hereunder" and other
words of similar import refer to this Agreement as a whole, as the same
from time to time may be amended or supplemented and not any particular
section, paragraph, subparagraph or clause contained in this Agreement.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the
plural, and pronouns stated in masculine, feminine or neuter gender
shall include the masculine, feminine and the neuter.
2. Term. This Agreement shall continue in effect through December
31, 2003; provided, however, that beginning on January 1, 2004 and on each
subsequent January 1, the term of this Agreement shall automatically be extended
for one additional year unless, not later than October 1 of the preceding year,
we shall notify you that we do not wish to extend this Agreement; and provided,
further, that if a Change in Control occurs during the original or extended term
of this Agreement, this Agreement shall continue in effect for a period of not
less than one year beyond the last day of the month in which the Change in
Control occurred.
3. Change in Control. NO BENEFITS WILL BE PAYABLE UNDER THIS
AGREEMENT UNLESS A CHANGE IN CONTROL OCCURS. For purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if: (i) any Person (other
than the Corporation, any trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation, or any affiliate of Trivest) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Corporation representing more
than 50% of the combined voting power of the Corporation's then outstanding
securities eligible to vote, or (ii) during any period of two consecutive years
(not including any period prior to the date of this Agreement), individuals who
at the beginning of such period constitute the Board, and any new director
(other than a director designated by a person who has entered into an agreement
with the Corporation to effect a transaction described in clause (i), (iii) or
(iv) of this Section 3) whose election by the Board or nomination for election
by the Corporation's stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved (the "Continuing Directors"), cease for any reason to
constitute at least a majority of the Board, (iii) the stockholders of the
Corporation approve a merger or consolidation of the Corporation with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50% of the combined
voting power of the voting securities of the Corporation or such surviving
entity outstanding
Xx. Xxxxxxx X. Xxxx
December 31, 2002
Page 4
immediately after such merger or consolidation; provided, however, that a merger
or consolidation effected to implement a recapitalization of the Corporation (or
similar transaction) in which no Person acquires more than 50% of the combined
voting power of the Corporation's then outstanding securities shall not
constitute a Change in Control, or (iv) the stockholders of the Corporation
approve a plan of complete liquidation of the Corporation or an agreement for
the sale or disposition by the Corporation of all or substantially all of the
Corporation's assets (or any transaction having a similar effect).
4. Termination of Employment Following Change in Control.
(a) General. If any of the events described in Section 3 above
constituting a Change in Control shall occur, you will be entitled to such
benefits provided in Section 5 below which may be applicable upon the subsequent
termination of your employment during the term of this Agreement. In the event
your employment with the Corporation is terminated for any reason prior to the
occurrence of a Change in Control and subsequently a Change in Control shall
occur, you will not be entitled to any benefits under this Agreement.
(b) Disability. If, as a result of your incapacity due to physical
or mental illness, you are absent from the full-time performance of your duties
with the Corporation for 90 consecutive days, and within 30 days after written
notice of termination is given, you have not returned to the full-time
performance of your duties, for purposes of this Agreement your employment may
be terminated for "Disability."
(c) Cause. Termination by the Corporation of your employment for
"Cause" means termination (i) upon the willful and continued failure by you to
substantially perform your duties with the Corporation (other than any such
failure resulting from your incapacity due to physical or mental illness or any
such actual or anticipated failure after the issuance of a Notice of Termination
by you for Good Reason), within 10 days after a written demand for substantial
performance is delivered to you by the Board, which demand specifically
identifies the manner in which the Board believes that you have not
substantially performed your duties, or (ii) the willful engaging by you in
conduct which is clearly and materially injurious to the Corporation, monetarily
or otherwise. For purposes of this Section 4(c), no act, or failure to act, on
your part shall be deemed "willful" unless done, or omitted to be done, by you
in bad faith and without reasonable belief that your action or omission was in
or not opposed to the best interest of the Corporation. Notwithstanding the
foregoing, you will not be deemed to have been terminated for Cause unless and
until there is delivered to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the Board),
finding that in the good faith opinion of the Board you were guilty of conduct
set forth above in this Section 4(c) and specifying the particulars thereof in
detail.
(d) Good Reason. You shall be entitled to terminate your
employment for Good Reason. For purposes of this Agreement, "Good Reason" means,
without your express written consent, the occurrence after a Change in Control
of any of the following circumstances unless, in the case of clauses (i), (v),
(vi), (vii) or (viii) of this Section 4(d), such circumstances are fully
Xx. Xxxxxxx X. Xxxx
December 31, 2002
Page 5
corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof: (i) the assignment to you of any duties
inconsistent with the status of the position in the Corporation that you held
immediately prior to the Change in Control or a materially adverse alteration in
the nature or status of your responsibilities or in the quality or amount of
office accommodations or assistance provided to you, from those in effect
immediately prior to the Change in Control, (ii) a reduction by the Corporation
in your annual base salary as in effect on the date immediately prior to the
Change in Control or as the same may be increased from time to time thereafter,
(iii) the Corporation's moving you to be based more than 50 miles from the
Corporation's offices at which you are principally employed immediately prior to
the date of the Change in Control (except for required travel on the
Corporation's business to an extent substantially consistent with your present
business travel obligations and except to the extent that you consent to any
such move prior to the date of the Change of Control), (iv) the failure by the
Corporation to pay to you any portion of your current compensation within seven
days of the date such compensation is due, (v) the failure by the Corporation to
continue in effect any compensation or benefit plan or perquisites in which you
participate immediately prior to the Change in Control which is material to your
total compensation, including but not limited to the Retirement Plans (but
excluding the Atlantis Plastics, Inc. Employee Stock Purchase Plan and any stock
option plan maintained by the Corporation immediately prior to the Change in
Control), unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the failure by the
Corporation to continue your participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both in terms of the
amount of benefits provided and the level of your participation relative to
other participants, than existed at the time of the Change in Control, (vi) the
failure by the Corporation to continue to provide you with benefits
substantially similar to those enjoyed by you under any of the Corporation's
life insurance, medical, dental, accident or disability plans in which you were
participating at the time of the Change in Control, the taking of any action by
the Corporation which would directly or indirectly materially reduce any of such
benefits, or the failure by the Corporation to provide you with the number of
paid vacation days to which you are entitled on the basis of your years of
service with the Corporation in accordance with the Corporation's normal
vacation policy in effect at the time of the Change in Control, (vii) the
failure of the Corporation to obtain a satisfactory agreement from any successor
to assume and agree to perform this Agreement, as contemplated in Section 6
below, or (viii) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the requirements of
Section 4(e) below (and, if applicable, the requirements of Section 4(c) above),
which purported termination shall not be effective for purposes of this
Agreement. Your right to terminate your employment pursuant to this Section 4(d)
will not be affected by your incapacity due to physical or mental illness Your
continued employment will not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason hereunder.
(e) Notice of Termination. Any purported termination of your
employment by the Corporation or by you shall be communicated by written Notice
of Termination to the other party hereto in accordance with Section 7 below.
"Notice of Termination" means a notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of your employment under the provision so indicated.
Xx. Xxxxxxx X. Xxxx
December 31, 2002
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(f) Date of Termination. "Date of Termination" means (i) if your
employment is terminated for Disability, 30 days after Notice of Termination is
given (provided that you have not returned to the full-time performance of your
duties during such 30-day period), (ii) if your employment is terminated
pursuant to Sections 4(c) or 4(d) above, the date specified in the Notice of
Termination (which, in the case of a termination for Good Reason, shall not be
less than 15 nor more than 60 days from the date such Notice of Termination is
given), (iii) in the case of a termination by you for any other reason, the date
specified in the Notice of Termination (which shall not be less than 30 days
from the date such Notice of Termination is given), (iv) if your employment is
terminated by the Corporation for any other reason, the date specified in the
Notice of Termination and (v) if your employment is terminated by reason of your
death, the date of your death; provided, however, that if within 15 days after
any Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without regard to this proviso), the party receiving
such Notice of Termination notifies the other party that a dispute exists
concerning the termination, then the Date of Termination (other than the Date of
Termination where clause (iv) of this Section 4(f) is applicable) shall be the
date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal therefrom has expired
and no appeal has been perfected); and provided, further, that the Date of
Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, the Corporation will continue to pay you your full compensation in
effect when the notice giving rise to the dispute was given and continue you as
a participant in all Retirement Plans, life insurance, medical, dental, accident
or disability plans and any similar plans in which you were participating when
the notice giving rise to the dispute was given, until the dispute is finally
resolved in accordance with this Section 4(f). Amounts paid under this Section
4(f) are in addition to all other amounts due under this Agreement, and shall
not be offset against or reduce any other amounts due under this Agreement and
shall not be reduced by any compensation earned by you as the result of
employment by another employer.
5. Compensation During Disability or upon Termination. Following
a Change in Control, you will be entitled to the following during a period of
Disability or upon termination of your employment, as the case may be, provided
that such period of Disability or termination of employment occurs during the
term of this Agreement:
(a) During any period that you fail to perform your full-time
duties with the Corporation as a result of incapacity due to physical or mental
illness, you will continue to receive your base salary at the rate in effect at
the commencement of any such period, together with all compensation payable to
you under the Corporation's disability plan or program or other similar plan
during such period, until this Agreement is terminated pursuant to Section 4(b)
above. Thereafter, or in the event your employment is terminated by reason of
your death, your benefits will be determined under the Corporation's retirement,
insurance and other compensation programs then in effect in accordance with the
terms of such programs.
Xx. Xxxxxxx X. Xxxx
December 31, 2002
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(b) If your employment is terminated by the Corporation for Cause
or by you other than for Good Reason, the Corporation will pay you your full
base salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given, plus all other amounts or benefits to which you
are entitled under any Compensation Plan of the Corporation then in effect, and
the Corporation shall have no further obligations to you under this Agreement.
(c) If, your employment is terminated by you for Good Reason or by
the Corporation other than for Cause or Disability, then you will be entitled to
the following: (i) the Corporation will pay to you your full base salary through
the Date of Termination at the rate in effect at the time Notice of Termination
is given, no later than the fifth day following the Date of Termination, (ii) in
lieu of any further salary payments or bonus payments to you for periods
subsequent to the Date of Termination, the Corporation will pay as severance pay
to you, at the time specified in Section 5(e) below, a lump sum severance
payment equal to three times the amount of your annual salary as in effect as of
your Date of Termination (without regard to any attempted or purported
termination or reduction of such salary), (iii) your rights under the Retirement
Plans will be governed by the terms of those respective plans, (iv) the
Corporation will pay to you all legal fees and expenses incurred by you as a
result of such termination (including all such fees and expenses, if any,
reasonably incurred in contesting or disputing by arbitration or otherwise, any
such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement or in connection with any tax audit or proceeding to
the extent attributable to the application of Section 4999 of the Code, to any
payment or benefit provided hereunder) and (v) for a two year period after such
termination, the Corporation will arrange to provide you with benefits
substantially similar to those which you were receiving or entitled to receive
under the Corporation's life, disability, accident and group health insurance
plans or any similar plans in which you were participating immediately prior to
the Date of Termination ("Welfare Plan Benefits") at a cost to you which is no
greater than that cost to you in effect at the Date of Termination; provided,
however, that to the extent any such coverage is prohibited by any judicial or
legislative authority, the Corporation shall make alternative arrangements to
provide you with Welfare Plan Benefits, including, but not limited to, providing
you with a payment in an amount equal to your cost of purchasing the Welfare
Plan Benefits. Benefits otherwise receivable by you pursuant to clause (v) above
shall be reduced to the extent comparable benefits are actually received on your
behalf during the two year period following your termination, and such benefits
actually received by you shall be reported to the Corporation.
(d) If any payments under this Agreement or any other payments or
benefits received or to be received by you in connection with a Change in
Control or your termination of employment (whether pursuant to the terms of this
agreement or any other plan, arrangement or agreement with the Corporation, or
any Affiliate of the Corporation) (the "Severance Payments"), will be subject to
the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar
tax that may hereafter be imposed), the Corporation will pay at the time
specified below an additional amount (the "Gross-Up Payment"), such that the net
amount retained by you, after deduction of any Excise Tax on the Severance
Payments and any federal, state and local income tax and Excise Tax upon the
payment provided for by this Section 5(d), shall be equal to the Severance
Payments. For purposes of determining whether any of the Severance Payments will
be subject to the Excise Tax and the amount of such Excise Tax, (i) all
Severance Payments shall
Xx. Xxxxxxx X. Xxxx
December 31, 2002
Page 8
be treated as "parachute payments" within the meaning of Section 280G(b)(2) of
the Code, and all "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in
the opinion of tax counsel selected by the Corporation's independent auditors
and acceptable to you such Severance Payments (in whole or in part) do not
constitute parachute payments, or such excess parachute payments (in whole or in
part) represent reasonable compensation for services actually rendered within
the meaning of Section 280G(b)(4) of the Code in excess of the base amount
within the meaning of Section 280G(b)(3) of the Code, or are otherwise not
subject to the Excise Tax, (ii) the amount of the Severance Payments which shall
be treated as subject to the Excise Tax shall be equal to the lesser of (1) the
total amount of the Severance Payments or (2) the amount of excess parachute
payments within the meaning of Section 280G(b)(1) of the Code (after applying
clause (i) above), and (iii) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Corporation's independent auditors
in accordance with the principles of Section 280G(d)(3) and (4) of the Code. For
purposes of determining the amount of the Gross-Up Payment, you shall be deemed
to pay federal income taxes at your highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at your highest marginal rate of taxation in the
state and locality of your residence on the Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of your employment, you will repay to the Corporation at the time
that the amount of such reduction in Excise Tax is finally determined the
portion of the Gross-Up Payment attributable to such reduction (plus the portion
of the Gross-Up Payment attributable to the Excise Tax and federal and state and
local income tax imposed on the Gross-Up Payment being repaid by you if such
repayment results in a reduction in Excise Tax and/or a federal and state and
local income tax deduction) plus interest on the amount of such repayment at the
rate provided in Section 1274(b)(2)(B) of the Code (the "Applicable Rate"). In
the event that the Excise Tax is determined to exceed the amount taken into
account hereunder at the time of the termination of your employment (including
by reason of any payment the existence or amount of which cannot be determined
at the time of the Gross-Up Payment), the Corporation will make an additional
Gross-Up Payment in respect of such excess (plus any interest payable with
respect to such excess at the Applicable Rate) at the time that the amount of
such excess is finally determined. Any payment to be made to you under this
Section 5(d) will be payable within five days of your Date of Termination.
(e) The payments provided for in Section 5(c)(i)(2) and Section
5(c)(ii) above will be made not later than the fifth day following the Date of
Termination; provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Corporation will pay to you on
such day an estimate, as determined in good faith by the Corporation, of the
minimum amount of such payments and will pay the remainder of such payments
(together with interest at the Applicable Rate) as soon as the amount thereof
can be determined but in no event later than 30 days after the Date of
Termination. In the event that the amount of the estimated payments exceeds the
amount subsequently determined to have been due, such excess shall constitute a
loan by the Corporation to you, payable on the fifth day after demand by the
Corporation (together with interest at the Applicable Rate).
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(f) Except as required in Section 5(c)(v) above, you shall not be
required to mitigate the amount of any payment provided for in this Section 5 by
seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in this Section 5 be reduced by any compensation earned by
you as the result of employment by another employer, by retirement benefits, by
offset against any amount claimed to be owed by you to the Corporation, or
otherwise; provided, however, that if during the one year period subsequent to
your Date of Termination, you directly compete with the Corporation by making
use of trade secrets or other proprietary knowledge you obtained while employed
by the Corporation in violation of the commitment to protect such proprietary or
trade secret information set forth in the Employment Agreement (determined
without regard to the termination of the Employment Agreement pursuant to
Section 12 below), all income earned as a result of such use of information
shall be remitted to the Corporation to the extent payments were made to you
under this Section 5.
(g) The provisions of this Section 5 shall survive the termination
of this Agreement.
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6. Successors; Binding Agreement.
(a) The Corporation 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 Corporation to (i)
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Corporation would be required to perform it if no such
succession had taken place and (ii) agree to notify you of the assumption of the
Agreement within 10 days of such assumption. Failure of the Corporation to
obtain any such assumption and agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle you to
compensation from the Corporation in the same amount and on the same terms to
which you would be entitled hereunder if you terminate your employment for Good
Reason following a Change in Control, except that for purposes of implementing
the foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
(b) This Agreement shall inure to the benefit of and be
enforceable by you and your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
should die while any amount would still be payable to you hereunder had you
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or, if there is no such designee, to your estate.
7. Notices. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notice to the Corporation shall be directed to the
attention of the Board with a copy to the Secretary of the Corporation, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by you and such officer as may be authorized by the Board.
No waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar of
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Florida without regard to its conflicts of law principles. All
references to sections of the Code shall be deemed also to refer to any
successor provisions to such sections. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state or local
law, except for any withholding that may be required under Section 4999 of
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December 31, 2002
Page 11
the Code. The obligations of the Corporation under Section 5 above shall survive
the expiration of the term of this Agreement.
9. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration, conducted before a panel of three arbitrators in the city of
Atlanta, Georgia or, at your option, in the city where you are principally
employed immediately prior to the date of a Change in Control, in accordance
with the rules of the American Arbitration Association then in effect; provided,
however, that you shall be entitled to seek specific performance of your rights
under Section 4(f) during the pendency of any dispute or controversy arising
under or in connection with this Agreement. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
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December 31, 2002
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12. Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; provided, however, that
the Employment Agreement shall remain in full force and effect until the
occurrence of a Change in Control, at which time the Employment Agreement shall
be deemed terminated and canceled. If this letter sets forth our agreement on
the subject matter hereof, kindly sign and return this original letter to the
Corporation which will then constitute our agreement on this subject. The
enclosed copy is for your personal records.
Sincerely,
Xxxx X. Xxxxxx
Chairman of the Board
ACCEPTED AND AGREED:
___________________________
Xxxxxxx X. Xxxx
