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AGREEMENT
This Agreement made as of this 1st day of January , 1995
by and between Dravo Corporation, a Pennsylvania corporation
(the "Corporation") and Xxxxxx X. Xxxxx, Xx., an individual
residing in the State of Pennsylvania and an employee of the
Corporation (the "Executive").
WITNESSETH:
WHEREAS, the Board of Directors of the Corporation has
determined that it is in the best interests of the
Corporation to enter into this Agreement with the Executive;
and
WHEREAS, the Executive desires to obtain certain
benefits in the event his employment is terminated due to a
Change-in-Control of the Corporation;
NOW, THEREFORE, the parties hereto, each intending to be
legally bound hereby, agree as follows:
1. Definition of Terms. The following terms when used
in this Agreement shall have the meaning hereafter set
forth:
(a) "Annual Salary Adjustment Percentage" shall mean
the mean average percentage increase in base salary
for all elected officers of the Corporation during
the two full calendar years immediately preceding the
time to which such percentage is being applied;
provided, however, that if after a Change-in-Control,
as hereinafter defined, there should be a significant
change in the number of elected officers of the
Corporation or in the manner in which they are
compensated, then the foregoing definition shall be
changed by substituting for the phrase "elected
officers of the Corporation" the phrase "persons then
performing the functions formerly performed by the
elected officers of the Corporation."
(b) "Cause for Termination" shall mean
(i) the deliberate and intentional failure by
the Executive to devote substantially his entire
business time and best efforts to the performance
of his duties (other than any such failure
resulting from the Executive's incapacity due to
physical or mental illness or disability) after a
demand for substantial performance is delivered
to the Executive by the Board of Directors of the
Corporation which specifically identifies the
manner in which the Board believes that the
Executive has not substantially performed his
duties,
or
(ii) the deliberate and intentional engaging by
the Executive in gross misconduct materially and
demonstrably injurious to the Corporation.
For purposes of this definition, no act, or failure
to act, on the Executive's part shall be considered
"deliberate and intentional" unless done, or omitted
to be done, by the Executive not in good faith and
without reasonable belief that his action or omission
was in the best interests of the Corporation.
(c) "Change-in-Control" shall mean a change in control of
the Corporation of such a nature that it would be
required to be reported by the Corporation in
response to item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of
1934, as in effect on the date hereof ("Exchange
Act"); provided, however, that without respect to the
foregoing, such a change in control shall be deemed
to have occurred if
(i) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act)
is or becomes the beneficial owner, directly or
indirectly, of securities of the Corporation
representing 20% or more of the combined voting
power of the Corporation's then outstanding
securities;
or
(ii) during any period of three consecutive
years, individuals who at the beginning of such
period constitute the Board of Directors of the
Corporation (the "Board") cease for any reason to
constitute at least a Majority thereof unless the
election, or the nomination for election by the
Corporation's shareholders, of each new director
was approved by a vote of at least two-thirds of
the directors then still in office who were
directors at the beginning of the period.
(d) "Date of Termination" shall mean
(i) if the Executive's employment is
terminated for Disability, thirty (30) days
after a Notice of Termination is given to the
Executive (provided that the Executive shall
not have returned to the performance of the
Executive's duties on a full time basis during
such thirty (30) day period);
(ii) if the Executive's employment
terminates due to his death or Retirement, the
date of death or Retirement, respectively;
(iii) if the Executive terminates
employment upon Good Reason for Termination,
the date specified for termination in any
notice delivered to the Corporation by the
Executive; or
(iv) if the Executive's employment is
terminated for any other reason, the date on
which a termination becomes effective pursuant
to a Notice of Termination; provided, however,
that if within thirty (30) days after any
Notice of Termination is given the party
receiving such Notice of Termination notifies
the other party that a dispute exists
concerning the termination, the Date of
Termination shall be the date on which the
dispute is finally determined, either by
mutual written agreement of the parties, by a
binding and final arbitration award or by a
final judgment, order or decree of a court of
competent jurisdiction (the time for appeal
therefrom having expired and no appeal having
been perfected).
(e) "Disability" shall mean such incapacity due to
physical or mental illness or injury as causes the
Executive to be absent from his principal office for
the entire portion of 90 consecutive business days.
(f) "Good Reason for Termination" shall mean:
(i) without the Executive's express written
consent, the assignment to the Executive of
any duties inconsistent with his positions,
duties, responsibilities and status with the
Corporation immediately prior to a Change-in-
Control, or a change in his reporting
responsibilities, titles or offices as in
effect immediately prior to a Change-in-
Control, or any removal of the executive from
or any failure to re-elect the Executive to
any of such positions, except in connection
with the termination of the Executive's
employment due to a Cause for Termination,
Disability or Retirement (as hereinafter
defined) or as a result of the Executive's
death;
(ii) a reduction by the Corporation in
the Executive's base salary as in effect
immediately prior to the Change-in-Control or
as the same may be increased from time to time
or the failure by the Corporation to increase
such base salary each year after the year in
which the Change-in-Control occurs by an
amount which at least equals, on a percentage
basis, the Annual Salary Adjustment
Percentage;
(iii) a failure by the Corporation to
continue to provide incentive compensation
comparable to that provided by the
Corporation's Incentive Compensation Plan as
the same may from time to time prior to a
Change-in-Control be modified or superseded by
another plan (the "Incentive Compensation
Plan"), or a failure by the Corporation to
continue the Executive as a participant in the
Incentive Compensation Plan on at least the
basis and according to the standards in effect
immediately prior to the Change-in-Control or
to pay the Executive when due any deferred
portion of a previous award under the
Incentive Compensation Plan;
(iv) the Corporation's requiring the
Executive to be based anywhere other than the
Corporation's executive offices at which the
Executive has his principal office immediately
prior to the Change-in-Control, except for
required travel on the Corporation's business
to an extent substantially consistent with the
Executive's present business travel
obligations immediately prior to the Change-in-
Control, or, in the event the Executive
consents to any such relocation of the
Corporation's principal executive offices, the
failure by the Corporation to pay (or
reimburse the Executive for) all reasonable
moving expenses incurred by the Executive
relating to a change of the Executive's
principal residence in connection with such
relocation and to indemnify the Executive
against any loss (defined as the difference
between the actual sale price of such
residence and the higher of (a) the
Executive's aggregate investment in such
residence or (b) the fair market value of such
residence as determined by a real estate
appraiser designated by the Executive and
reasonably satisfactory to the Corporation)
realized in the sale of the Executive's
principal residence in connection with any
such change of residence;
(v) the failure by the Corporation to
continue in effect any benefit or compensation
plan (including but not limited to the
Corporation's Long-Term Incentive Award Plan
of 1983, Stock Option Plan of 1978, Employee
Stock Option Plan of 1988, Stock Option Plan
of 1994, and the Executive Benefit Plan),
pension plan, life insurance plan, health and
accident plan or disability plan in which the
Executive is participating immediately prior
to the Change-in-Control (provided, however,
that there shall not be deemed to be any such
failure if the Corporation substitutes for the
discontinued plan, a plan providing the
Executive with substantially similar
benefits), the taking of any action by the
Corporation which would adversely affect the
Executive's participation in or materially
reduce the Executive's benefits under any of
such plans or deprive the Executive of any
material fringe benefit enjoyed by the
Executive immediately prior to the Change-in-
Control, or the failure by the Corporation to
provide the Executive with the number of paid
vacation days to which the Executive is then
entitled on the basis of years of service with
the Corporation in accordance with the
Corporation's normal vacation policy all as
and to the extent they are in effect
immediately prior to the Change-in-Control;
(vi) the failure of the Corporation to
obtain the assumption of this Agreement by any
successor as contemplated in Section 9(c)
hereof; or
(vii) any purported termination of the
employment of the Executive by the Corporation
which is not (A) due to the Executive's
Disability, death, Retirement (as hereinafter
defined) or in accordance with section 2
hereof, or (B) effected pursuant to a Notice
of Termination satisfying the requirements of
subsection (g) below;
(viii) notwithstanding the foregoing, it
shall not be deemed Good Reason for
Termination if the Corporation, acting in good
faith, makes changes to any compensation or
benefits plan or program that is made
available on a nondiscriminatory basis to the
salaried employees of the Corporation, which
changes do not apply disproportionately to the
elected officers of the Corporation or those
persons then performing the functions formerly
performed by the elected officers of the
Corporation.
(g) "Notice of Termination" shall mean a written
statement which sets forth the specific reason for
termination and, if such is claimed to be Cause for
Termination, in reasonable detail the facts and
circumstances which indicate that such is Cause for
Termination together with notice of the time and
place of the meeting of the Board of Directors of the
Corporation called to consider such matter in
accordance with section 2 hereof.
(h) "Options" shall mean any stock options issued
pursuant to the Corporation's Employee Stock Option
Plan of 1988, Long-Term Incentive Award Plan of 1983,
Stock Option Plan of 1978 or any future stock option
plan.
(i) "Retirement" shall mean a termination of the
Executive's employment after age 65 or in accordance
with any mandatory retirement arrangement with
respect to an earlier age agreed to by the Executive.
(j) "Stock Appreciation Rights" shall mean any stock
appreciation rights issued pursuant to the
Corporation's Employee Stock Option Plan of 1988,
Long-Term Incentive Award Plan of 1983, Stock Option
Plan of 1978 or any future stock appreciation rights
plan.
2. "Termination by the Corporation Due to Cause for
Termination."
If the Corporation desires to terminate the Executive's
employment due to Cause for Termination, the Corporation
shall first deliver a Notice of Termination to the
Executive. Thereafter, the Board of Directors at a
meeting held not less than two weeks nor more than four
weeks after the delivery of the Notice Of Termination
shall consider whether cause for Termination exists.
Cause for Termination shall not be deemed to exist under
this Agreement unless and until the Board determines in
good faith by the affirmative vote of not less than three-
quarters of the entire membership of the Board that the
Executive has engaged in conduct which is Cause for
Termination. Should the Board determine that Cause for
Termination exists, the Board may at that time or during a
period of two weeks thereafter terminate the Executive's
employment due to Cause for Termination by adopting at
such time or during such period by a similar three-
quarters vote a resolution terminating the Executive's
employment. If the Board fails to adopt within such two-
week period a resolution terminating the Executive's
employment, then the Corporation shall be deemed to have
waived its right to terminate the Executive due to those
circumstances which constituted the Cause for Termination
previously found to exist by the Board.
3. Termination Payments Following Change-in-Control.
(a) If, during the term of this Agreement, a Change-
in-Control shall have occurred and the Executive's
employment with the Corporation shall be terminated
(i) due to the Executive's death,
(ii) by the Executive unless terminated
for Good Reason for Termination, or
(iii) by the Corporation in accordance
with section 2 hereof or for Disability or
Retirement, then the Corporation shall have no
obligations hereunder to the Executive and the
only obligations of the Corporation to the
Executive shall be in accordance with any
other employment agreement applicable to the
Executive and the then various policies,
practices and benefit plans of the
Corporation.
(b) If during the term of this Agreement both a Change-in-
Control shall have occurred and the Executive's
employment with the Corporation shall have terminated
other than under the circumstances above described in
Subsection 3(a), then the Corporation shall pay or
cause to be paid on or before the fifth day following
the Date of Termination in cash to the Executive the
following sums:
(i) any unpaid portion of the Executive's
full base salary for the period from the last
period for which the Executive was paid to the
Date of Termination;
(ii) any then deferred portions of cash
awards (including deferred awards which but
for this provision would not be payable until
subsequent to the Date of Termination) made to
the Executive under the Executive incentive
Compensation Plan; and
(iii) an amount as liquidated damages for
lost future remuneration equal to the product
obtained by multiplying
(A) the lesser of
(1) three or
(2) a number equal to the number of
calendar months remaining from the
Date of Termination to the date on
which the Executive is 65 years of age
(or, if earlier, the age agreed to by
the Executive pursuant to any prior
arrangement) divided by twelve
times
(B) the sum of
(1) the greater of
(i) the Executive's base salary
for the year in effect on the Date
of Termination (provided that in
the case of Termination for Good
Reason by the Executive the date
immediately preceding the date of
the earliest event which gave rise
to the Termination for Good Reason
by the Executive shall be used
instead of the Date of
Termination)
or
(ii) the Executive's base salary
for the year in effect on the date
of the Change-in-Control;
provided that "base salary for the
year" shall be the amount of base
salary for the year established by the
Board of Directors at the beginning of
the fiscal year in question in
accordance with the compensation
policies and practices of the
Corporation, without regard to any
reduction in the amount actually paid
to the Executive during such year as a
result of any plan of the Corporation
to reduce compensation due to economic
considerations, and without regard to
any deferral of compensation payable
to the Executive for services rendered
during such year to a subsequent year.
plus
(2) the greater of
(i) the average annual cash award
received by the Executive under
the Executive Incentive
Compensation Plan for the two
calendar years immediately
preceding the Date of Termination
(provided that in the case of
Termination for Good Reason by the
Executive the date immediately
preceding the date of the event
which gave rise to the Termination
for Good Reason by the Executive
shall be used instead of the Date
of Termination;
or
(ii) the average annual cash award
received by the Executive under
the Incentive Compensation Plan
for the two calendar years
immediately preceding the date of
the Change-in-Control.
(c) Notwithstanding any other provisions of this
Agreement, in the event that any payment or benefit
received or to be received by the Executive pursuant
to the terms of this Agreement or otherwise
(collectively the "Total Payments") would not be
deductible, in whole or part, as a result of section
280G of the Internal Revenue Code of 1986, as amended
(the "Code") by the Corporation, an affiliate or
other person making such payment or providing such
benefit, the payments due under this Agreement (the
"Contract Payments") shall be reduced until no
portion of the Total Payments is not deductible, or
the Contract Payments are reduced to zero. For
purposes of this limitation (i) no portion of the
Total Payments the receipt or enjoyment of which you
shall have effectively waived in writing prior to the
date of payment of the Contract Payments shall be
taken into account, (ii) no portion of the Total
Payments shall be taken into account which in the
opinion of tax counsel selected by the Corporation's
independent auditors and acceptable to you does not
constitute a "parachute payment" within the meaning
of section 280G(b)(2) of the Code, (iii) the Contract
Payments shall be reduced only to the extent
necessary so that the Total Payments (other than
those referred to in clauses (i) or (ii) in their
entirety constitute reasonable compensation for
services actually rendered within the meaning of
section 280G(b)(4) of the Code or are otherwise not
subject to disallowance as deductions, in the opinion
of the tax counsel referred to in clause (ii); and
(iv) the value of any non-cash benefit or any
deferred payment or benefit included in the Total
Payments shall be determined by the Corporation's
independent auditors in accordance with the
principles of sections 280G(d)(3) and (4) of the
Code.
4. Stock Appreciation Rights and Stock Options.
(a) If the Executive's employment should terminate
under such circumstances as entitle the Executive to
receive payments pursuant to section 3(b) hereof,
then, in lieu of Stock Appreciation Rights granted to
the Executive (and whether or not they are in tandem
with any Options, but provided that this subsection
shall not apply to any Stock Appreciation Rights in
tandem with incentive stock options) that were
outstanding for at least six months prior to the Date
of Termination and that were neither subsequently
exercised nor expired by their terms prior to the Date
of Termination (which rights and any related in tandem
options shall be cancelled upon the making of the
payment hereafter described), the Executive shall
receive an amount in cash on or before the fifth day
following the Date of Termination equal to the
difference, if positive, obtained by
(i) taking the product obtained by
multiplying
(A) the number of such stock appreciation
rights
times
(B) the greater of
(1) the mean between the highest and
lowest quoted selling prices for the
Corporation's common stock on the
composite tape for the New York Stock
Exchange on the trading day
immediately preceding the Date of
Termination;
or
(2) the highest price paid per share
for the Corporation's common stock in
the transaction resulting in the
actual Change-in-Control.
and
(ii) subtracting therefrom the aggregate
of the products obtained by multiplying the
mean between the highest and lowest quoted
selling prices for the Corporation's Common
Stock on the composite tape for the New York
Stock Exchange on each date of grant of such
Stock Appreciation Rights times the number of
such Stock Appreciation Rights granted on such
date.
(b) If the Executive's employment should terminate
under such circumstances as entitle the Executive to
payments pursuant to Section 3(b) hereof then the
Executive may elect, during the 60-day period from and
after a Change of Control (other than a Change of
Control initiated by the Executive), to surrender his
rights in any of the options granted to the Executive
provided that this subsection shall not apply to any
Options accompanied by a Stock Appreciation Right that
were outstanding for at least six months prior to the
Date of Termination and that were neither subsequently
exercised nor expired by their terms prior to the Date
of Termination and, upon such surrender, the
Corporation shall pay to the Executive an amount of
cash with respect to each such option equal to the
difference, if positive, obtained by
(i) taking the product obtained by
multiplying
(A) the number of shares of common stock as
to which the option is exercisable
times
(B) the greater of
(1) the mean between the highest and
lowest quoted selling prices for the
Corporation's Common Stock on the
composite tape for the New York Stock
Exchange on the trading day
immediately preceding the Date of
Termination
or
(2) the highest price paid per share
for Corporation's Common Stock in the
transaction resulting in the actual
Change-in-Control
and
(ii) subtracting therefrom the option
price for such Shares of Common Stock.
(c) In the event the Executive's employment should
terminate under such circumstances as entitle the
Executive to payments pursuant to Section 3(b) hereof,
the Corporation agrees to accelerate and make
immediately exercisable in full all unmatured options
held by the Executive at the Date of Termination,
whether or not otherwise exercisable, effective as of
the Date of Termination. In the event that the
Executive has been granted Incentive Stock Options
pursuant to Section 422A(b)(7) of the Internal Revenue
Code of 1986 (the "Code") which would otherwise become
immediately exercisable hereunder but for the
limitation imposed by Code Section 422A(b)(7), such
options shall only become exercisable as to the
maximum number of shares permitted by Code Section
422A(b)(7) and the balance of such options shall
become exercisable at the earliest date or dates
thereafter permitted by Code Section 422A(b)(7), with
those options with the lowest exercise prices becoming
exercisable at the earliest date or dates.
5. Retirement Benefits.
(a) If the Executive's employment should terminate
under such circumstances as entitle the Executive to
receive payments pursuant to section 3(b) hereof,
then, notwithstanding such termination, the Executive
shall be deemed to continue as an active employee
participant in the Corporation's pension plan for
salaried employees, and the benefits payable to him,
his surviving spouse or contingent annuitant shall be
calculated as if he had been continuously employed by
the Corporation for those years (including parts
thereof) subsequent to the Date of Termination and
prior to the earlier of (i) three years subsequent to
the Date of Termination, and (ii) the Executive's
death or attainment of age 65 (or, if earlier, the
age agreed to by the Executive pursuant to any prior
arrangement), at the covered remuneration set forth
in the following sentences of this subsection. The
covered remuneration for any part of a year remaining
after the Date of Termination shall equal the number
of months remaining in such year times the sum
determined pursuant to section 3(b)(iv)(B) hereof and
divided by twelve. The covered remuneration for the
first full credited year following the Date of
Termination shall equal the sum determined pursuant
to section 3(b)(iv)(B) hereof. The covered
remuneration for the first full credited year after
the first full credited year shall equal the sum of
(i) the covered remuneration for the immediately
preceding year plus (ii) the product of the Annual
Salary Adjustment percentage for such credited years
times the covered remuneration for the immediately
preceding year.
(b) If for any reason whether by law or the terms of the
Corporation's pension plan, such pension plan cannot
either use the above credited years of service and
remuneration above described in subsection 5(a) for
purposes of the Executive's pension benefits
(including surviving spouse and contingent annuitant
benefits) or cannot pay the full amount of benefits
which would result from the foregoing subsections,
then the Corporation hereby contractually agrees to
pay the difference between
(i) the benefits which would be payable if
the pension plan had been able to pay such
benefits based upon the credited years of
service and covered remuneration above
described in subsection 5(a),
and
(ii) the benefits, if any, actually paid
to the Executive, his surviving spouse or
contingent annuitant by the pension plan.
The Corporation shall not be required to fund its
obligation to pay the foregoing difference.
6. Other Benefit Plans.
(a) If the Executive's employment should terminate
under such circumstances as entitle the Executive to
receive payments pursuant to section 3(b) hereof and
if the Executive is a participant in the
Corporation's Executive Benefit Plan (or a plan
providing comparable benefits) shall be in effect
prior to the Change-in-Control, then the Executive
will be deemed for purposes of such Plan (or, if
applicable, the plan providing comparable benefits)
to have continuously remained in the employ of the
Corporation until the earlier of (i) three years
subsequent to the Date of Termination, and (ii) his
death or attainment of age 65 (or the age agreed to
by the Executive pursuant to any prior arrangement),
at a total compensation equal to his total
compensation in effect on the Date of Termination
(provided that in the case of Termination for Good
Reason by the Executive the date immediately
preceding the date of the earliest event which gave
rise to the Termination for Good Reason by the
Executive shall be used instead of the Date of
Termination) and to have made any required
contributions due thereunder. The Executive will be
eligible to receive all benefits under such Plan (or,
if applicable, the plan providing comparable
benefits) payable as though he had so remained in the
Corporation's employ and had made any required
contributions notwithstanding that he neither was so
employed nor made any such contributions.
(b) Except with respect to (i) any Stock Appreciation
Rights and Stock Options, as to which payment is
provided in Section 4(a) hereof, (ii) the
Corporation's pension plan, which is governed by
paragraph 5 hereof, (iii) the Executive Benefit Plan,
and (iv) the Incentive Compensation Plan, the
Executive shall be deemed for purposes of all
employee benefits to have remained in the continuous
employment of the Corporation for a period of three
years following the Date of Termination and shall be
entitled to all of the benefits provided by such
plans as though he had so remained in the employment
of the Corporation.
(c) If for any reason, whether by law or provisions of
the Corporation's employee benefit plans, any
benefits which the Executive would be entitled to
under the foregoing subsections of this section 6
cannot be paid pursuant to such employee benefit
plans, then the Corporation hereby contractually
agrees to pay to the Executive the difference between
the benefits which the Executive would have received
in accordance with the foregoing subsections of this
section if the relevant employee benefit plan could
have paid such benefit and the amount of benefits, if
any, actually paid by such employee benefit plan.
The Corporation shall not be required to fund its
obligation to pay the foregoing difference.
7.Other Employment.
(a) The Executive shall have no duty to seek any other
employment after termination of his employment with
the Corporation and the Corporation hereby waives and
agrees not to raise or use any defense based on the
position that the Executive had a duty to mitigate or
reduce the amounts due him hereunder by seeking other
employment whether suitable or unsuitable.
(b) Should the Executive obtain other employment, then
the only effect of such on the obligations of the
Corporation hereunder shall be that the Corporation
shall be entitled to credit against any payments
which would otherwise be made pursuant to sections 5,
6(a) or 6(b) hereof, any comparable payments to which
the Executive is entitled under the pension or other
employee benefit plans maintained by the Executive's
other employers after termination of his employment
with the Corporation. In no event shall any sums
received by the Executive from any other employment
be credited against or otherwise reduce the amounts
payable by the Corporation pursuant to Sections 3 or
4 hereof.
8.Term.
(a) This Agreement shall be for a term expiring
August 31, 1998 and shall automatically be extended
for successive five year terms at the end of each
preceding term unless termination occurs pursuant to
subsection (b) or (c) below, whichever is applicable.
(b) If a Change-in-Control has occurred, this
Agreement shall remain in effect until terminated on
the date which is three years from the Change-in-
Control.
(c) If a Change-in-Control has not occurred, this
Agreement shall terminate if the Executive's
employment with the Corporation terminates for any
reason whether such termination of employment is by
the Corporation or by the Executive. Otherwise,
prior to a Change-in-Control, this Agreement may only
be terminated by the Corporation upon the giving by
the Corporation of notice of termination at least
thirty days prior to the end of the then term, in
which event this Agreement shall terminate at the end
of such term.
9. Miscellaneous.
(a) This Agreement shall be construed under the laws
of the Commonwealth of Pennsylvania.
(b) This Agreement constitutes the entire
understanding of the parties hereto with respect to
the subject matter hereof and may only be amended or
modified by written agreement signed by the parties
hereto.
(c) 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,
by agreement in form and substance satisfactory to
the executive, to expressly assume and agree to
perform this Agreement in the same manner required of
the Corporation and to perform it as if no such
succession had taken place. Failure of the
Corporation to obtain such agreement prior to the
effectiveness of any such succession shall be a
breach of this Agreement and shall entitle the
Executive to terminate employment due to Good Reason
for Termination. As used in this Agreement,
"Corporation" shall mean the Corporation as
hereinbefore defined and any successor to its
business and/or assets as aforesaid which executes
and delivers the agreement provided for in this
subsection (c) or which otherwise becomes bound by
all the terms and provisions of this Agreement by
operation of law.
(d) This Agreement shall inure to the benefit of and be
enforceable by the Executive or his legal
representatives, executors, administrators,
successors, heirs, distributees, devisees and
legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he
had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his
devisee, legatee or other designee or if there be no
such designee, to his estate.
(e) Any notice or other communication provided for in
this Agreement shall be in writing and, unless
otherwise expressly stated herein, shall be deemed to
have been duly given if mailed by United States
registered mail, return receipt requested, postage
prepaid addressed
in the case of the Executive to his office at the
Corporation with a copy to his residence and in the
case of the Corporation to its principal executive
offices, attention of the Chief Executive Officer.
(f) No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by the
Executive and approved by resolution of the Board of
Directors of the Corporation. No waiver by either
party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at
any prior or subsequent time. Except for any
employment agreement with the Executive, 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 set forth expressly in this Agreement. To
the extent that the provisions of this Agreement are
in conflict with any such employment agreement,
following a Change-in-Control the employment
agreement shall automatically be amended in
accordance with this Agreement and the provisions of
this Agreement shall govern.
(g) The invalidity or unenforceability of any provisions
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.
(h) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an
original but all of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed on
the date first above written.
ATTEST: DRAVO CORPORATION
/s/ XXXXX X. XXXXXX By /s/ XXXX X. MAJOR
/s/ XXXXXX X. XXXXX, XX.
