EXHIBIT (e)(6)
FORM OF TIER-TWO EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective the ____ day of ______, ______,
by and between XXXXXX INDUSTRIES, INC., a Missouri corporation (hereinafter
referred to an "Employer"), and ___________ (hereinafter referred to as
"Employee").
WHEREAS, Employer desires to employ Employee in the capacity of of
the Employer; and
WHEREAS, Employee desires to be employed by Employer in the
aforesaid capacity; and
WHEREAS, Employer and Employee desire to set forth in writing the
terms and conditions of their agreements and understandings.
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT. Employer shall employ Employee in the capacity
set forth below. This Employment Agreement shall replace all employment
agreements, if any, entered into between Employer and Employee prior to the
effective date of this Employment Agreement. Employee's employment under this
Agreement shall continue for a rolling twelve (12) month term. This
Agreement, except for Sections 6, 7, 8, 9, 10, 17 and 18 hereof which shall
survive the termination of this Agreement, may be terminated in accordance
with the provisions of Sections 11.1, 11.2, 11.3 and 11.4 hereof.
2. DUTIES OF EMPLOYEE.
2.1 Employee's title shall be ___________ of the Employer. In accepting
such employment by Employer, Employee shall, INTER ALIA, undertake and assume
the responsibility for performing for and on the behalf of Employer such
duties consistent with the said office as shall be reasonably assigned to
Employee by the ___________ of the Employer at any time and from time to
time. Employee covenants and agrees that he will, at all times, faithfully,
industrially, and to the best of his ability, experience and talents, perform
all of the duties that may be reasonably required of and from such Employee
pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of Employer. Any business activity of Employee other than those
related to Employer business shall not interfere with Employee's obligation
to Employer under this agreement at any time.
2.2 Employee covenants and agrees that, at all times during the term of
this Agreement, Employee shall devote his full time efforts to his duties as
an employee of the Employer. Employee further covenants and agrees that he
will not, directly or indirectly, engage or participate in any
activities at any time during the term of this Agreement in conflict with the
best interests of the Employer. Employer agrees that the foregoing shall not
preclude Employee from serving as a member of the board of directors of one
or more for-profit companies (in addition to Employer or its subsidiaries);
provided that in each such instance Employee shall have received the prior
approval of the ___________ of the Employer.
3. COMPENSATION.
3.1 As base compensation for all services to be rendered for Employer or
Employee under this Agreement, Employee shall be paid annual salary of ________
($______) payable in equal bi-weekly payments, and such salary shall be
prorated at commencement or expiration of the term in the event that the
first or last pay period is less than a bi-weekly period. Any additional
salary increments and the times and amounts of such shall be in the sole
discretion of the Board of Directors of the Employer.
4. Additional Benefits.
4.1 In addition to, and not in limitation of, the compensation referred
to in Section 3 hereof, Employee shall be eligible to receive an Officer
Bonus. The times and amounts of such Officer Bonus for future years during
the term of this Agreement shall be at the sole discretion of the Board of
Directors of Employer.
4.2 In addition to, and not in limitation of the compensation referred
to in paragraph 3 hereof, Employee shall be entitled to additional benefits
during the term hereof including, but not limited to, medical insurance
coverage for Employee and any other insurance programs which may be offered
by Employer to other executives of Employer from time to time upon terms
similar to those made available to other executives of Employer.
4.3 In addition to the compensation and Officer Bonus described in
Sections 3.1, 4.1 and 4.2 above, Employee may be eligible to receive stock or
option bonuses as determined by the Compensation Committee and ratified by
the Board of Directors of the Employer in accordance with the terms of the
Long-Term Incentive Plan (or other similar employee benefit plans) of the
Employer. The timing, form and amount of such bonuses shall be in the sole
discretion of the Compensation Committee of the Board of Directors.
4.4 Employee shall be entitled to vacation benefits (in accordance with
corporate policy applicable from time to time to the executive officers of
Employer) and automobile allowances or reimbursements to the same extent as
other executive officers of Employer.
5. Reimbursement of Business Expenses. Employee is hereby authorized by
Employer to incur reasonable, ordinary and necessary business expenses for
promoting Employer's business, including expenditures for travel and
entertainment.
Employer shall reimburse Employee for all such business expenses,
provided that Employee submits to Employer an account book, diary, or similar
record in which Employee has recorded, at or near the time each expenditure
was made, (i) the amount of the expenditure, (ii) the time, place, and nature
of the travel or entertainment expense, (iii) the business reason for the
expenses and the business benefit derived or expected to be derived
therefrom, and (iv) the names, occupations, and
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other data concerning individuals entertained sufficient to establish their
business relationship with Employer.
The right to reimbursement is also subject to the requirements that
Employee submit to Employer supporting documents, such as receipts or paid
bills, sufficient to establish the amount, date, place, and essential
character of (i) any expenditure for lodging while traveling away from home
and (ii) any other expenditure of Twenty-Five Dollars ($25.00) or more. All
entertainment expenses shall also be subject to approval by the Employer's
_________.
6. DISCLOSURE OF INFORMATION. Employee acknowledges that, in and as a
result of his employment hereunder, he will be making use of, requiring
and/or adding to confidential information of a special and unique nature and
value relating to such matters as Employer's trade secrets, systems,
procedures, manuals, confidential reports and lists of customers, as well as
the nature and method used and preferred by Employer's customers, and the
fees paid by such customers. As a material inducement to Employer to enter
into this Agreement, and to pay to Employee the compensation referred to in
paragraph 3 hereof (as well as any additional benefits referred to in
paragraph 4 hereof), Employee covenants and agrees that he shall not, at any
time during the term of his employment hereunder or after the termination of
Employee's employment hereunder for any reason, directly or indirectly, use,
divulge or disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to him as a result of his
employment by Employer. In the event of a breach or threatened breach by the
Employee of any of the provisions of this paragraph 6, Employer, in addition
to and not in limitation of any other rights, remedies or damages available
to Employer at law or in equity, shall be entitled to a permanent injunction
in order to prevent or to restrain any such breach by Employee, or by
Employee's partners, agents, representatives, servants, employers, employees
and/or any and all persons directly or indirectly acting for or with him.
7. COVENANTS AGAINST COMPETITION. Employee acknowledges that his
services to be rendered hereunder are of a special and unusual character
which have a unique value to Employer, the loss of which cannot adequately be
compensated by damages in an action at law. In view of the unique value to
Employer of the services of Employee for which Employer has contracted
hereunder, and because of the confidential information to be obtained by or
disclosed to Employee, as hereinabove set forth, and as a material inducement
to Employer to enter into this Agreement, and to pay to Employee the
compensation referred to in paragraph 3 hereof (as well as any additional
benefits referred to in paragraph 4 hereof), Employee covenants and agrees
that during the term of employment and for a period of twelve (12) months
thereafter or for any period pursuant to Section 11.2 hereof, that Employee
is receiving any severance pay, whichever is greater, Employee shall not,
directly or indirectly, either individually or as an employee, consultant or
contractor of others: (1) engage in any business the same or similar to the
business of Employer in any geographic area in which Employer is doing
business; or (2) contact, sell to or solicit business from any business or
entity which was a customer or account of Employer during the five (5) years
immediately preceding the end of Employee's employment.
8. ACCOUNTING FOR PROFITS. Employee covenants and agrees that, if he
shall violate any of his covenants or agreements under paragraphs 6 or 7
hereof, Employer shall be entitled to an accounting and repayment of all
profits, compensation, commissions, renumerations or benefits
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which Employee directly or indirectly has realized and/or may realize as a
result of, growing out of or in connection with any such violation; such
remedy shall be in addition to and not in limitation of any injunctive relief
or other rights or remedies to which Employer is or may be entitled at law or
in equity or under this Agreement.
9. RETURN OF MATERIALS. Employee agrees that upon the termination of
this employment with Employer he will promptly return to Employer all
manuals, records, materials and other papers pertaining to transactions
handled by Employee, or pertaining to Employer's business and all copies of
the same.
10. REASONABLENESS OF RESTRICTIONS.
10.1 Employee has carefully read and considered the provisions of
paragraphs 6, 7, 8 and 9 hereof and, having done so, agrees that the
restrictions and agreements set forth in such paragraphs (including, but not
limited to, the time period or restriction) are fair and reasonable and are
reasonably required for the protection of the interests of Employer, its
officers, directors and other employees.
10.2 In the event that, notwithstanding the foregoing, any of the
provisions of paragraphs 6, 7, 8 and 9 hereof shall be held to be invalid or
enforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable as though the invalid and unenforceable parts had
not been included therein. In the event that any provision of paragraphs 6 or
7 relating time period and/or areas of restriction, the time period and/or
area of restriction under this Agreement shall be declared by a court of
competent jurisdiction to exceed the maximum time period and/or areas of
restriction shall be deemed to become and thereafter be the maximum time
period and/or areas which such court deems reasonable and enforceable.
11. TERMINATION OF EMPLOYMENT.
11.1 Nothing in this Agreement shall be construed to prevent Employer
from terminating Employee's employment under and pursuant to this Agreement
at any time for cause or if Employee shall have violated any material
provisions of this Agreement. Termination of Employee's employment under this
Section shall not constitute a breach of this Agreement by Employer, and
shall relieve Employer of any and all obligation to pay any compensation
provided by Section 3, 4 and 5 to Employee for any period after the date of
such termination.
Termination of Employee's employment under this Agreement for cause shall
include, but shall not be limited to, the following:
a) fraud, misappropriation or embezzlement by Employee in connection
with his employment under this Agreement;
b) the use by Employee of illegal narcotic substances;
c) the immoderate use of alcoholic beverages by Employee which
interferes with the performance of Employee's duties under this Agreement;
and
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d) the failure or inability of Employee, for a continuous six (6)
month period, to work or to comply with the reasonable employment
requirements established for Employee from time to time by the Board of
Directors of Employer; and
11.2 In the event that (i) Employee's employment under this Agreement is
terminated by the Employer for any reason other than for cause as described
in Section 11.1 above or (ii) in the event of a material breach by Employer
of its obligations under this Agreement, Employee shall be entitled to
severance pay equal to base salary payable to Employee under the terms of
Section 3.1 hereof for a period of twelve (12) months from the date of
termination of this Agreement. In addition, Employer shall continue to
provide medical insurance benefits to Employee during the severance period.
The severance payments provided hereunder shall be in lieu of and in complete
substitution for all compensation which would have been due and owing to
Employee for the remainder of the then current employment term. No severance
payments under this Section arise or are owed by Employer hereunder to
Employee after Employee has reached 65 years of age. If such termination
occurs, the severance amount due hereunder shall be calculated based upon the
base salary as determined by 3.1 in effect immediately prior to such
termination. The total of any severance pay due Employee under this Section
shall be reduced to an amount equal to twenty percent (20%) of remaining
severance payments otherwise due hereunder after the receipt of any
compensation earned by Employee from other employment sources in their
occupation during the twelve (12) month period in which severance payments
are payable hereunder. Any severance pay or benefits due under the terms of
this Section shall be subject to withholding for federal, state, and local
taxes, as applicable.
11.3 This Agreement may be terminated by Employee upon one hundred
eighty (180) days written notice to Employer. After such termination date,
all compensation described in Sections 3.1 and 4.1 through 4.4 hereof shall
cease. The rights of Employee under the various benefit plans of Employer
shall be governed as provided in the respective plans.
11.4 This Agreement may be terminated by the written agreement of the
parties hereto, subject to the requirements of Section 15.
12. BURDEN AND BENEFIT. This Agreement shall be binding upon and shall
inure to the benefit of Employer and Employee, and their respective heirs,
personal and legal representatives, successors and assigns.
13. GOVERNING LAW. In view of the fact that the principal office of
Employer is located in the State of Missouri, it is understood and agreed
that the construction and interpretation of this Agreement shall at all times
and in all respects be governed by the laws of the State of Missouri.
14. SEVERABILITY. The provisions of this Agreement (including
particularly, but not limited to, the provisions of paragraphs 6, 7, 8 and 9
hereof) shall be deemed severable, and the invalidity or unenforceability of
any one or more of the provisions hereof shall not affect the validity and
enforceability of the other provisions hereof.
15. NOTICES. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by certified or registered mail, return
receipt requested, first-class postage prepaid, to his
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residence in the case of Employee, and to its principal office in the State
of Missouri in the case of Employer.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding by and between Employer and Employee with respect to the
employment herein referred to, and no representations, promises, agreements
or understandings, written or oral, not herein contained shall be in force or
effect. No amendment or modification hereof shall be valid or binding unless
the same is in writing and signed by the party intended to be bound. No
waiver of any provision of this Agreement shall be valid unless the same is
in writing and signed by the party against whom such waiver is sought to be
enforced; moreover, no valid waiver of any other provision of this Agreement
at any time shall be deemed a waiver of any other provision of this Agreement
at such time or will be deemed a valid waiver of such provision at any other
time.
17. VOLUNTARY ASSISTANCE TO EMPLOYER AFTER EXPIRATION OR TERMINATION OF
EMPLOYMENT. Following the expiration or termination of Employee's employment
with Employer, Employee shall voluntarily cooperate with and assist Employer,
its accountants and legal counsel, in investigating, analyzing, defending or
otherwise assisting or cooperating with Employer in any pending or future
claims against or involving Employer and any of its affiliated entities,
employees, officers and directors; provided, that Employer shall reimburse
Employee for Employee's reasonable out-of-pocket expenses. Employer's
requests for assistance hereunder shall be reasonable as to timing and
duration and shall be subject to the time requirements of any other
employment obligations of Employee. With the exception of disclosures
required by subpoena or other mandatory legal process, Employee also agrees
(1) to maintain in strict confidence any information or knowledge held by
Employee regarding pending or future claims against or involving Employer,
and (2) not to communicate with any party or governmental agency adverse to
Employer, or with a representative, agent or legal counsel for any such party
or agency, concerning any pending or future claims or litigation, without
Employer's written consent and the presence of legal counsel for Employer.
18. ARBITRATION. Except for claims or disputes arising under Section 6,
7, 8, 9, and 10 hereof, all claims, disputes and questions of any nature
arising out of or relating to this Agreement or any breach hereof shall be
resolved by arbitration conducted in Kansas City, Missouri. Except as
provided herein to the contrary, all arbitration proceedings shall be
conducted according to the rules of the American Arbitration Association then
in effect unless the parties hereto shall otherwise agree, in writing. The
terms of this section shall be specifically enforceable under the prevailing
arbitration law. The award of a majority of the arbitrators shall be
conclusive, final and binding upon the parties and judgment may be entered
upon such award in accordance with the applicable law in any court of
competent jurisdiction.
Any party may invoke the terms of this section by giving written notice
thereof to the other party, delivered by first class mail to the last known
address of such other party. Such notice shall, with specificity, set forth
the nature of the dispute, shall name one arbitrator and shall be signed by
the party requesting arbitration. Within fifteen days after receipt of such
notice, the other party shall deliver a signed written notice to the first
party naming a second arbitrator. If the other party fails to timely select a
second arbitrator, the first arbitrator shall be the sole arbitrator and
shall decide all disputes pursuant to the terms of this section. If a second
arbitrator is timely selected, the two named arbitrators shall, within
fifteen days after delivery of the notice selecting the second
6
arbitrator, select a third arbitrator. If the two arbitrators are unable to
agree on a third arbitrator, the third arbitrator shall be the President of
the Kansas City Metropolitan Bar Association or any successor organization or
a person selected by the President if he is unable or unwilling to serve. In
order to qualify as an arbitrator, the person named must be licensed to
practice law in the State of Missouri and must not be (i) counsel to Employer
or Employee or (ii) related, by marriage or by blood to the second degree to
Employee, any employee or shareholder of Employer or any employee,
shareholder, owner, partner, or associate of any firm or entity with which
Employee becomes associated after termination of this Agreement.
The expense of the arbitration proceeding shall be borne by the Employer
except each party shall bear the cost of his own experts, evidence, and
counsel fees.
IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement under seal as of the day, month and year first above written.
EMPLOYER: XXXXXX INDUSTRIES, INC., a Missouri
corporation
By:
____________________________________
Xxxxxx X. Xxxxxx, Chairman of the
Board
EMPLOYEE:
________________________________________
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AMENDMENT NUMBER ONE
TO
EMPLOYMENT AGREEMENT
WHEREAS, Xxxxxx Industries, Inc., a Missouri corporation (the "Employer"),
and ___________ (the "Employee") entered into an Employment Agreement effective
__________, _____ (the "Employment Agreement"); and
WHEREAS, General Electric Company, a New York corporation (the "Parent"),
Four Points Acquisition, Inc, a Missouri corporation ("Four Points"), and the
Employer have entered into an Agreement and Plan of Merger, dated as of
July 16, 2000 (the "MERGER AGREEMENT"), pursuant to which Four Points will
commence an offer to exchange (the "Offer") Parent common stock for the
Employer's Shares and thereafter merge with and into the Employer (the
"MERGER");
WHEREAS, the Employee is a key employee of the Employer, and the Employer
desires to provide an incentive to the Employee to continue to serve the
Employer as a key employee following the Merger; and
WHEREAS, the Employee desires to continue to be employed by Employer
following the Merger and desires to amend the Employment Agreement upon the
terms contained herein
WHEREAS, in connection with the Merger, the parties desire to enter into
this Agreement, to be effective as of the date Four Points accepts the Employer
Shares for payment pursuant to the Offer ("Effective Time");
NOW, THEREFORE, in consideration of the mutual covenants in this Agreement,
the parties hereby agree to enter into this Amendment Number Two to Employment
Agreement (the "Amendment") and amend the Employment Agreement as follows:
1. EFFECTIVENESS OF AMENDMENT; This Amendment shall be effective as of
the Effective Time. In the event the Merger is not consummated, this
Amendment shall be null and void.
2. A new Section 19 is added to the Agreement as follows:
SECTION 19. RETENTION BONUS. As of the Effective Time, the Parent
shall grant to the Employee an award of restricted stock in the amount of
the number of shares of the Parent Common Stock, par value $.06 per share,
as set forth on Schedule I to this Agreement (the "RESTRICTED STOCK
RETENTION BONUS"). Provided that the Employee at all times remains an
Employee of the Employer, the Parent or an Affiliate of the Employer or
Parent (as the term "Affiliate" is defined in the Merger Agreement) the
Restricted Stock
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Retention Bonus shall be vested as follows: 50% on the date that is the
second anniversary of the Effective Time and 50% on the date that is the
third anniversary of the Effective Time. If the Employee's employment with
the Employer, Parent or any Affiliate of the Employer or Parent is terminated
prior to the vesting dates indicated above, then any portion of the
Restricted Stock Retention Bonus which at the time of termination is not
vested shall be forfeited. All other terms and conditions of the Restricted
Stock Retention Bonus are set forth in Schedule II to this Agreement.
3. New Section 11.5 is added to the Agreement as follows.
11.5. (a) TERMINATION PAYMENT FOR TERMINATION PRIOR TO SECOND
ANNIVERSARY OF EFFECTIVE TIME. Notwithstanding anything to the contrary
stated herein, if the Employee is terminated prior to the second
anniversary of the Effective Time, the amounts payable under Section 11.2
shall not be payable and the Termination Payment (as defined below) shall
be made to the Employee. If the employment of the Employee is terminated
(i) by the Employee upon the occurrence of (A) an involuntary and
substantial diminution in the nature or scope of the Employee's authority
or duties as existed at the Effective Time, (B) a reduction in the
aggregate of the Employee's Base Pay and bonus opportunity as it existed
at the Effective Time or (C) the relocation of the Employee's office
to a location more than 50 miles from the location of the Employee's office
immediately prior to the Effective Time, or (ii) by the Employer without
"Cause" (as modified by this Amendment below) or for death or "Disability"
(as defined below) during the period commencing at the Effective Time and
ending on the second anniversary of the Effective Time, provided that the
Employee (or the Employee's executor or other legal representative in the
case of the Employee's death or Disability) executes the Release (as defined
in Section 11.5 (c) below), the Employer shall pay the Employee (or the
Employee's executor or other legal representative in the case of the
Employee's death or Disability) the Termination Payment set forth on
Schedule III to this agreement (the "TERMINATION PAYMENT") in a lump sum
cash amount. The Termination Payment shall be paid to the Employee (or to
the Employee's executor or other legal representative in the case of the
Employee's death or Disability) within 10 days following termination in
accordance with the preceding sentence.
(b) Intentionally left blank
(c) RELEASE. Notwithstanding anything to the contrary contained in
this Agreement, the Termination Payment shall not be payable to the Employee
(or the Employee's executor or other legal representative in the case of the
Employee's death or Disability) pursuant to this Section 11.5 unless and
until the Employee (or the Employee's executor or other legal representative
in the case of the Employee's death or Disability) executes a general release
in the form of Exhibit A attached hereto (the "Release").
(d) GROSS-UP PAYMENT. In addition to a Termination Payment paid
pursuant to Section 3.1, the Employer shall pay an amount (the "Excise Tax
Reimbursement Payment") necessary to reimburse the Employee for any federal
excise tax imposed on him under Section 4999(a) of the Internal Revenue Code
of 1986, as
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amended (the "Code") or any successor section of the Code as a result of
the Employee's receipt of the Termination Payment; however, such Excise
Tax Reimbursement Payment shall not reimburse the Employee for (i) any
other federal or state income tax payable as a result of the receipt of
the Termination Payment or the Excise Tax Reimbursement Payment or (ii)
any federal excise tax imposed as a result of the Employees receipt of
the Excise Tax Reimbursement Payment. Such Excise Tax Reimbursement
Payment shall be made on the same date as the Termination Payment.
(e) Intentionally left blank.
(f) CONTINUATION OF MEDICAL BENEFITS. Upon any termination of the
Employee obligating the Employer to make a Termination Payment to the
Employee, the Employer shall provide until the anniversary of the
Effective Time indicated on Schedule III, to the extent permitted under
any applicable plan, the Employee with medical and life insurance
benefits in the same or substantially similar amounts as were in effect
before the Effective Time, or in such amounts as have been agreed to in
writing by the Employee since the Effective Time. In the event the
Employee accepts employment prior to the anniversary indicated on
Schedule III of the Effective Time, the Employer's obligation to provide
medical and life insurance under shall terminate as of the time the
Employee accepts such employment.
(g) AFTER SECOND ANNIVERSARY OF EFFECTIVE TIME. In the event that
the Employee is terminated after the second anniversary of the Effective
Time, the amounts payable under new Section 11.5 shall not be paid and
the Employee shall be compensated pursuant to the Employment Agreement,
as otherwise amended by this Amendment.
4. ADDITION TO DEFINITION OF CAUSE. Section 11.1 is hereby modified to
add new subsection 11.1 (e) as follows:
"e) willful violation of the Parent's integrity policies (after a
reasonable time with regard to any termination based upon a failure
to implement a program to communicate and implement such policies) as
set forth in the booklet "The Spirit and Letter," a copy of which has
been provided to the Employee,
5. The following sections of the Agreement are hereby terminated:
Section 4.3.
6. Section 7 of the Agreement is hereby modified as follows: references
to Section 11.2 are deemed to include references to Section 11.5, if
applicable.
7. Section 15 of the Agreement is hereby modified as follows: Any
notice or communication given by either party under the Agreement shall also
be given as follows:
GE Transportation Systems
0000 Xxxx Xxxx Xxxx
00
Xxxx, Xx. 00000
Attn: General Counsel
8. The last Sentence of Section 1, as amended, is deleted and the
following is substituted in its place:
This Agreement, except for Sections 6, 7, 8, 9, 10, 17, 18 and 19 hereof
which shall survive the termination of this Agreement, may be terminated
in accordance with the provisions of 11.1, 11.2, 11.3, 11.4 and 11.5
hereof.
10. All other provisions of the Agreement remain without change.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the day and year first above written.
XXXXXX INDUSTRIES, INC
By:
____________________________________
Name:
Title:
EMPLOYEE
________________________________________
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EXHIBIT A
Date of Notification:___________________
GENERAL RELEASE
This is a General Release (this "RELEASE") executed by ___________ (the
"EMPLOYEE") pursuant to Section 11.5 of the Employment Agreement dated as of
________, 2000 (the "EMPLOYMENT AGREEMENT") between Xxxxxx Industries, Inc., a
Missouri corporation (the "COMPANY"), and the Employee.
WHEREAS, the Employee shall have no further work responsibilities with the
Employer after ____________;
WHEREAS, the employment of the Employee will be terminated by the Employer;
WHEREAS, the Employer and the Employee intend that the terms and conditions
of the Employment Agreement and this Release shall govern all issues related to
the Employee's employment and termination of employment by the Employer;
WHEREAS, the Employee has had at least 21 days to consider the form of this
Release.
WHEREAS, the Employer advised the Employee in writing to consult with a
lawyer before signing this Release;
WHEREAS, the Employee has represented and hereby reaffirms that the Employee
has disclosed to the Employer any information in the Employee's possession
concerning any conduct involving the Employer, General Electric Company, a New
York corporation (the "PARENT"), or their affiliates that the Employee has any
reason to believe involves any false claims to the United States or is or may be
unlawful or violates the policies of the Employer or the Parent in any respect;
WHEREAS, the Employee acknowledges that the consideration to be provided to
the Employee under the Employment Agreement is sufficient to support this
Release;
WHEREAS, the Employee represents that the Employee has not filed any
charges, claims or lawsuits against the Employer or the Parent involving any
aspect of the Employee's employment which have not been terminated as of the
date of this Release; and
WHEREAS, the Employee understands that the Employer regards the
representations by the Employee as material and that the Employer is relying on
these representations in paying amounts to the Employee pursuant to the
Employment Agreement.
THEREFORE, the Employee agrees as follows:
A-1
1. The Employee's employment with the Employer shall terminate on
__________________ (the "TERMINATION DATE").
2. The Employee shall receive the termination payments set forth in
Section 3 of the Employment Agreement.
3. Intentionally left blank
4. The Employee, on behalf of the Employee and anyone claiming through the
Employee, including the Employee's heirs, assigns and agents, releases and
discharges the Employer, the Parent and their respective directors, officers,
employees, subsidiaries, affiliates and agents, and the predecessors, successors
and assigns of any of them (the "RELEASED PARTIES"), from each and every claim,
action or right of any sort, in law or in equity, known or unknown, asserted or
unasserted, foreseen or unforeseen, arising on or before the Effective Date (as
set forth in Section 11 hereof).
(a) This Release includes, but is not limited to: any claim of
discrimination on the basis of race, sex, religion, marital status, sexual
orientation, national origin, handicap or disability, age, veteran status,
special disabled veteran status or citizenship status; any other claim based
on a statutory prohibition or common law doctrine; any claim arising out of
or related to the Employee's employment with the Employer, the terms and
conditions thereof or the termination or cessation thereof; any express or
implied employment contract, any other express or implied contract affecting
terms and conditions of the employee's employment or the termination or
cessation thereof, or a covenant of good faith and fair dealing; any tort
claims and any personal gain with respect to any claim arising under the qui
tam provisions of the False Claims Act, 31 U.S.C. 3730.
(b) The Employee represents that the Employee understands this Release,
that rights and claims under the Age Discrimination in Employment Act of
1967, as amended, the Civil Rights Act of 1964, as amended, the Civil Rights
Act of 1991, the Civil Rights Act of 1866, the Older Workers' Benefit
Protection Act, the Family and Medical Leave Act, the Americans with
Disabilities Act, the Employee Retirement Income Security Act of 1974 and
the Wisconsin Fair Employment Act are among the rights and claims against
the Released Parties the Employee is releasing, and that the Employee
understands that the Employee is not releasing any rights or claims arising
after the Effective Date.
(c) The Employee further agrees never to xxx the Released Parties or
cause the Released Parties to be sued regarding any matter within the scope
of this Release. If the Employee violates this Release by suing any of the
Released Parties or causing any of the Released Parties to be sued, the
Employee agrees to pay all costs and expenses of defending against the suit
incurred by the Released Parties, including reasonable attorneys' fees.
(d) The Employee expressly represents and warrants that the employee is
the sole owner of the actual or alleged claims, demands, rights, causes of
action and other matters that are released herein, that the same have not
been transferred or assigned or caused to be
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transferred or assigned to any other person, firm, corporation or other
entity, and that the Employee has the full right and power to grant,
execute and deliver this Release.
5. The Employee acknowledges that the Employee is bound by the provisions of
Sections 5 and 6 of the Employment Agreement.
6. The Employee understands that any and all Employer covenants which relate
to Employer obligations to the Employee after the Termination Date, including
but not limited to the payments set forth in Section 11.5 of the Employment
Agreement, are contingent on the Employee's satisfaction of the Employee's
obligations under this Release.
7. The Employee agrees that, for the period commencing on the Termination
Date and ending on the second anniversary of the Termination Date, the Employee
will be reasonably available to the Employer and the Parent to respond to
requests by the Employer or the Parent for information pertaining to or relating
to the Employer, the Parent and their affiliates, subsidiaries, agents,
officers, directors or employees which may be within the knowledge of the
Employee. The Employee will cooperate fully with the Employer in connection with
any and all existing or future litigation or investigations brought by or
against the Employer, the Parent or any of their affiliates, agents, officers,
directors or employees, whether administrative, civil or criminal in nature, in
which and to the extent the Employer deems the Employee's cooperation necessary.
The Employee understands that the Employer will reimburse the Employee for
reasonable out-of-pocket expenses incurred as a result of such cooperation.
Nothing herein shall prevent the Employee from communicating with or
participating in any government investigation. The Employee will act in good
faith to furnish the information and cooperation required by this Section 7 and
the Employer will act in good faith so that the requirement to furnish such
information and cooperation does not create a hardship for the Employee.
8. The Employee agrees, subject to any obligations the Employee may have
under applicable law, that the Employee will not make or cause to be made any
statements that disparage, are inimical to, or damage the reputation of the
Employer, the Parent or any of their affiliates, subsidiaries, agents, officers,
directors or employees. In the event such a communication is made to anyone,
including but not limited to the media, public interest groups and publishing
companies, it will be considered a material breach of the terms of the
Employment Agreement and this Release and the Employee will be required to
reimburse the Employer for any and all payments made under the terms of the
Employment Agreement and all commitments to make additional payments to the
Employee will be null and void.
9. The Employer is not obligated to offer employment to the Employee (or to
accept services or the performance of work from the Employee directly or
indirectly) now or in the future.
10. The Employee may revoke this Release in writing within seven days of
signing it. This release will not take effect until the Effective Date. If the
Employee revokes this Release, all of its provisions and the provisions of
Section 11.5 of the Employment Agreement shall be void and unenforceable.
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11. The Termination Date of the Employee's employment will be ____________.
The Effective Date of this Release shall be the day after the end of the
revocation period described in Section 10 hereof.
12. The Employee shall keep strictly confidential all the terms and
conditions, including amounts, in the Employment Agreement and this Release and
shall not disclose them to any person other than the Employee's spouse, the
Employee's legal or financial advisor or United States governmental officials
who seek such information in the course of their official duties, unless
compelled by law to do so. If a person not a party to the Employment Agreement
requests or demands, by subpoena or otherwise, that the Employee disclose or
produce the Employment Agreement or this Release or any terms or conditions
thereof, the Employee shall immediately notify the Employer and shall give the
Employer an opportunity to respond to such notice before taking any action or
making any decision in connection with such request or subpoena.
13. The Employment Agreement and this Release constitute the entire
understanding between the parties. The employee has not relied on any oral
statements that are not included in the Employment Agreement or this Release.
14. In the event that any provision of this Agreement is determined to be
legally invalid or unenforceable by any court of competent jurisdiction, and
cannot be modified to be enforceable, the affected provision shall be stricken
from the Agreement, and the remaining terms of the Agreement and its
enforceability shall remain unaffected.
15. This Release shall be construed, interpreted and applied in accordance
with the law of the State of Missouri (other than conflict of laws principles).
EMPLOYEE
______________________________________
Date:
_____________________________________________
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SCHEDULE I
TO
RETENTION AGREEMENT
RETENTION PAYMENT
Payment to: 1.0 X current base salary + 3 Number of Shares of Restricted
year average (`97--`98--`99) Stock
bonus
------------------------------ ------------------------------ ------------------------------
[Employee] $ [# of shares]*
------------------------------ ------------------------------ ------------------------------
------------------------
* NUMBER OF SHARES TO BE ALLOCATED WILL BE BASED ON THE "AVERAGE PARENT PRICE"
AS DEFINED IN AND DETERMINED PURSUANT TO THE MERGER AGREEMENT, ROUNDED TO
THE NEAREST WHOLE NUMBER OF SHARES.
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SCHEDULE II
TO
RETENTION AGREEMENT
TERMS OF RESTRICTED STOCK
[TO BE ATTACHED]
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SCHEDULE III
TO
AMENDMENT TO EMPLOYMENT AGREEMENT
TERMINATION PAYMENTS
Payment to: 1.75 X current base 1.75 X 401(k) match 1.75 X Average ESOP
+ 3 year average allocation
(`97--`98--`99)
bonus
------------------------------------- -------------------- -------------------- --------------------
[employee] $ $* $**
------------------------------------- -------------------- -------------------- --------------------
------------------------
* The term "401(k) match" is defined to mean the amount contributed by the
Employer on behalf of the Employee to the Employer's 401(k) plan for the most
recently completed calendar year. This amount will be determined at the time
of any Termination Payment.
** The term "Average ESOP allocation" is defined to mean the average of the
amounts paid by the Employer to the Employer's Employee Stock Ownership Plan
for the benefit of the Employee during the last three most recent completed
calendar years. This amount will be determined at the time of any Termination
Payment.
Section 11(f) Period: 21 Months
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