1
EXHIBIT 10.1
FORM OF EXECUTIVE AGREEMENT
, 199
--------------- --
-------------------------
-------------------------
Dear :
--------------
Elcor Corporation (the "Company") considers it essential to its best
interests to xxxxxx the continuous employment of key management personnel and
their objective pursuit of what is in the best interests of the Company and its
shareholders. In this connection, the Board of Directors of the Company (the
"Board") recognizes that, as is the case with many publicly held corporations,
the possibility of a change in control may exist at some time in the future.
That possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of key management
personnel to the detriment of the Company and its shareholders, whether or not
the change of control actually comes to fruition.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued objectivity and dedication to corporate
objectives of key members of the management of the Company and its
subsidiaries, including you, in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company. Furthermore, the Board believes that appropriate incentives should be
provided to key management personnel to assist in the transition of the Company
upon any change in control. This letter agreement ("Agreement") is intended to
reduce or eliminate your personal loss from any change in control transaction
and thereby ensure your objective pursuit or performance of corporate strategy
and your strong commitment to the best interests of the Company and its
shareholders before and after any such transaction.
In order to induce you to remain in the employ of the Company during
any threatened change in control, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
Company and you agree as follows:
1. Term and Nature of Agreement. This Agreement will commence on the
date hereof and will continue in effect through the second anniversary of this
Agreement; provided, however, that commencing on such anniversary and each
second anniversary thereafter, the term of this Agreement will automatically be
extended for two additional years unless, not later than 30 days prior to the
end of the term in that year, either party has given notice to the other party
that it does not wish to extend this Agreement; provided, further, that,
subject to Section 3(i), this Agreement will terminate upon the termination of
your employment with the Company or its subsidiary for any reason prior to any
Change in Control, and no payments or benefits will be due hereunder if this
Agreement has terminated or expired in accordance with this Section 1 prior to
a Change in Control. This Agreement is not an employment agreement and is
independent of the at-will employment relationship
2
M
--. -----------------------
, 199
---------------------- ---
Page 2
between the Company or its subsidiary and you. No term of this Agreement will
be deemed or interpreted to construe or confer rights outside of the specific
contractual relationship established by this Agreement, whether to establish a
course of dealing between the parties, to confer implied terms of employment,
to alter the status quo that you are strictly an employee-at-will of the
Company or its subsidiary, or otherwise.
2. Payments and Benefits.
(i) Payable Only Upon a Change in Control. No bonus or other payments
or benefits will be payable pursuant to this Agreement unless there has been a
Change in Control of the Company.
(ii) Separation Payment. If your employment with the Company or its
subsidiary is terminated at any time within three (3) years following the
Change in Control, (A) by the Company or its subsidiary without Cause, or (B)
by you for Good Reason, then the Company will pay you a separation payment (the
"Separation Payment"). Subject to Section 4(vii), the Separation Payment will
be a lump-sum cash payment equal to ________ (___) times your Annual
Compensation. If, however, your employment with the Company or its subsidiary
is terminated at any time (subject to Section 3(i)) prior to a Change in
Control, or is terminated after the Change in Control (A) by the Company or its
subsidiary for Cause, (B) by you without Good Reason, or (C) because of your
death or Disability, then no Separation Payment under this Agreement will be
due to you from the Company. The Company will pay you, or cause the Escrow
Agent or L/C Issuer under Section 2(vi) to pay you upon your presentation of
documents contemplated thereby, any Separation Payment to which you are
entitled under this Section 2(ii) within ten (10) days after the effective date
of the termination of your employment with the Company. If you are
terminated for any reason at any time, whether before or after any Change in
Control, nothing in this Agreement will prevent the Company or its subsidiary,
as the case may be, from awarding you reasonable severance compensation to
which you have no contractual entitlement under this Agreement, if in its sole
discretion, it determines to do so, but nothing in this Agreement will be
construed to mean that the Company or its subsidiary will or is obligated to do
so.
(iii) No Offsets. Any Separation Payment paid to you will not act to
reduce any other compensation, bonuses or other benefits to which you are or
may otherwise become entitled, including without limitation accrued vacation
pay, or salary or bonus that is accrued but unpaid as of the effective date of
termination of employment. The Company will not have any rights of offset
against Separation Payments due to you hereunder, except for any tax
withholding or garnishment required under applicable law.
(iv) Employee Welfare Benefits. If upon a Change in Control you are
employed by the Company or its subsidiary, then for at least ________ (___)
years following the Change in Control, you and your dependents will receive the
same or substantially the same group medical, disability and life insurance
coverage through the Company as you did immediately prior to such Change in
Control
3
M
--. -----------------------
, 199
---------------------- ---
Page 3
at no more than one-hundred twenty percent (120%) of your pre-Change in Control
employee cost; provided, however, that if your employment with the Company or
its subsidiary is terminated during such _____-year period (A) because of your
death or Disability, (B) by the Company or its subsidiary for Cause, or (C) by
you without Good Reason, then as of the effective date of your termination of
employment, you will no longer be entitled to such coverage, but you or your
representative and dependents may be entitled to elect continued coverage under
the employee health plan(s) then offered by the Company only to the extent, if
any, mandated under the Consolidated Omnibus Budget Reconciliation Act of
1985, as it may be amended or superseded ("COBRA"). If your employment with
the Company or its subsidiary is terminated within _____ (___) years following
the Change in Control (A) by the Company or its subsidiary without Cause, or
(B) by you with Good Reason, then you and your dependents will be entitled, to
the extent permitted under the plans and applicable law, to receive the same or
substantially the same group medical, disability and life insurance coverage as
you did immediately prior to the Change in Control, including comparable
coverage of conditions existing at the time of reference, at the same or
substantially the same cost to you as your pre-Change in Control employee cost,
for the balance of the _____-year period following the Change in Control, and
after the end of such period, you or your representative or dependents, as the
case may be, may elect continued coverage for you and your dependents under
health plans then offered by the Company or its subsidiary only for the time
and upon the terms, if any, mandated under COBRA. Notwithstanding the
foregoing provision of Section 2(iv), if after the termination of your
employment, the Company or its subsidiary is unable under applicable law or for
any other reason to provide the same or substantially the same benefits to you
as specified above, you and the Company will negotiate in good faith for the
Company's payment or provision to you of an adequate substitute that provides
you the economic equivalent of the above benefits and the opportunity for
reasonable protection from the risks against which the above benefits would
otherwise insure. Subject to Section 3(i), if your employment with the Company
or its subsidiary is terminated for any reason prior to a Change in Control, or
after the _____-year period following a Change in Control, your entitlement to
continued benefits will be limited to mandated health benefits under COBRA,
unless otherwise agreed by the Company or as otherwise provided in any employee
benefit plan of the Company or any subsidiary.
(v) Credited Service - Stock/Loan Plan. If within three (3) years
following a Change in Control your employment with the Company or its
subsidiary is terminated (A) by the Company or its subsidiary without Cause, or
(B) by you with Good Reason, then the Company or such subsidiary, as the case
may be, will provide you and accrue the Supplemental Credited Service.
"Supplemental Credited Service" means service credits, for purposes of
forgiveness of then outstanding loans to you under the Company's Stock/Loan
Plan, sufficient to render all of your outstanding Stock/Loans from the Company
forgiven in full.
(vi) Escrow of Funds. Immediately prior to a Change in Control, the
Company will deposit into an insured, interest bearing escrow account (the
"Escrow Account") funds equal to the maximum Separation Payment and Gross-Up
Payment potentially payable to you pursuant to Sections 2(ii) and
4
M
--. -----------------------
, 199
---------------------- ---
Page 4
5(i) under the facts and circumstances at that time (the "Maximum
Payment"). The Escrow Account will be held pursuant to an escrow agreement
with a federally insured depository institution having net capital and surplus
in excess of $100,000,000.00 (the "Escrow Agent"). Such escrow agreement will
provide that immediately upon your presentation of an affidavit that all
conditions to payment of such funds to you have been met, the Escrow Agent will
pay you funds equal to any amount, up to the Maximum Payment, sworn to be due.
All amounts in excess of any amounts due to you, including interest accruing on
funds on deposit and potentially payable amounts that ultimately are not due
under the Agreement, will revert to the Company. At the Company's option, in
lieu of the foregoing escrow securing payment to you, immediately prior to the
Change in Control the Company will provide you with an irrevocable letter of
credit from a federally insured depository institution (the "L/C Issuer")
having net capital and surplus in excess of $100,000,000.00. Such letter of
credit will have a term extending to or beyond the third annual anniversary of
the Change in Control, and will be in an amount equal to the Maximum Payment.
The terms of the letter of credit will require the L/C Issuer to pay or honor
one or more drafts drawn by you under the letter of credit upon your
presentation of draft(s) in any amount up to the Maximum Payment along with
your sworn, notarized affidavit stating that all conditions to payment of such
amount have been satisfied. You will be entitled to provide the sworn affidavit
that the Separation Payment and Gross-Up Payment are due at the respective
times provided for such payments under Section 2(ii) and 5(ii) of this
Agreement. The escrow agreement or letter of credit reimbursement agreement
between the Company and the Escrow Agent or L/C Issuer, as the case may be,
will provide such financial institution with indemnities and exculpation from
liability as is reasonable and sufficient to permit it to perform its duties in
accordance with Section 2(vi) without threat of liability except for such
institution's willful misconduct.
3. Other Agreements.
(i) No Circumvention of Agreement. Any termination of your
employment without Cause by the Company, and any reduction of compensation,
including a reduction of benefits under a material employee compensation,
benefit, or welfare plan, or other action which would constitute Good Reason if
it occurred after a Change in Control, if made prior to the Change in Control
but during the term of this Agreement, or any notice of termination or
expiration of this Agreement given by the Company in accordance with Section 1,
which is at the instance, request, suggestion or because of the influence or
upon the suggestion of another party to the transaction resulting in the Change
in Control, or its affiliate or associate, or any other transaction designed to
circumvent the intent and purposes of this Agreement, upon the Change of
Control will be treated, solely for purposes of the Company's payment and other
obligations to you under this Agreement, as a termination of your employment by
the Company without Cause, immediately after the effective time of the Change
in Control.
(ii) No Obligation to Mitigate. You will not be required to mitigate
the amount of any payment or benefit provided for in this Agreement by seeking
other employment or otherwise, nor
5
M
--. -----------------------
, 199
---------------------- ---
Page 5
will the amount of any payment or benefit provided for in this Agreement be
reduced by any compensation or benefit 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 Company or its subsidiary, or
otherwise; provided, that payments by the Company or its subsidiary designated
as payments under this Agreement will be credited against the obligations under
this Agreement whether or not the payor entity is the Company; and provided,
further, that if you are reemployed while covered by the welfare benefits set
forth in Section 2(iv), and become covered under your new employer's employee
welfare plans, your entitlement to the benefits set forth in Section 2(iv)
thereupon will cease, except to any extent mandated otherwise by COBRA. You
will provide the Company with immediate notice of such reemployment and
coverage, and to the extent that you fail to do so, you will be obligated to
reimburse the Company or its subsidiary for its costs of providing you non-
mandatory benefits under Section 2(iv) subsequent to your reemployment date,
with interest at a rate of twelve percent (12%) per annum, compounded monthly.
4. Certain Definitions. For purposes of this Agreement, the
following terms denoted by capitalization of initial letters will have the
definitions below:
(i) Annual Compensation. "Annual Compensation" means the highest
annual total of base salary, bonuses (including without limitation amounts paid
under the applicable Incentive Cash Bonus Plan) and commissions paid to you by
the Company and/or any of its affiliates, without reduction for any deductions,
withholding, reductions or deferrals, in the three calendar years ending before
the date of the Change in Control. For purposes of the preceding definition,
only years in which you were employed by the Company or its subsidiary are
included in the calculation of Annual Compensation, and compensation will be
annualized for any partial years of such employment within the three calendar
years ending before the date of the Change in Control.
(ii) Beneficial Owner. "Beneficial Owner" and its derivatives means
any Person (as defined in Section 4(viii)) who, directly or indirectly, through
any contract, trust, power of attorney, pooling or other arrangement,
understanding, relationship or otherwise has or shares voting power, which
includes the power to vote or direct the voting of a security, and/or
investment power, which includes the power to dispose or direct the disposition
of such security; provided however that for purposes of this Agreement,
Beneficial Ownership will not be deemed to result solely by virtue of a
Person's right to acquire a security under any agreement, arrangement or
understanding, including without limitation any option, conversion or exchange
rights, warrants or option, until such rights are actually exercised or
asserted, as the case may be; and provided, further, that no Person will be
deemed to be a Beneficial Owner of securities solely as a result of acting as a
member of the proxy committee appointed by the Board, or by virtue of a
revocable proxy given in response to a public proxy or consent solicitation
made in accordance with the Exchange Act; and, provided further, that no Person
ordinarily engaged in business as an underwriter of securities will be deemed a
Beneficial Owner of any securities acquired through such person's participation
in good faith in a firm commitment
6
M
--. -----------------------
, 199
---------------------- ---
Page 6
underwriting until the expiration of forty days after the date of such
acquisition and then only if such securities continue to be owned by such
Person at the end of such forty day period.
(iii) Cause. Termination by the Company or its subsidiaries of your
employment for "Cause" means termination upon (A) your willful and continued
failure to substantially perform your duties with the Company or its subsidiary
(other than any such failure resulting from your incapacity due to physical or
mental illness, or any actual or anticipated failure of your performance after
the Company's issuance of a notice of termination or your issuance of a notice
of termination for Good Reason), 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, (B) your willful conduct which is
demonstrably and materially injurious to the Company or its subsidiary,
monetarily or otherwise, or (C) your felony conviction for a violation of a
criminal law. For purposes of this Section 4(iii), no act, or failure to act,
on your part will be deemed "willful" unless done, or omitted to be done, by
you without good faith and without reasonable belief that your action or
omission was in or not opposed to the best interests of the Company. Not in
limitation of the foregoing, "Cause" does not include (W) acts or omissions
attributable to bad judgment or gross negligence unless due to willful,
habitual and continued bad judgment or gross negligence, (X) any act or
omission in respect of which a determination could properly be made that you
met the applicable standard of conduct prescribed for indemnification or
reimbursement or payment of expenses under the Certificate of Incorporation and
Bylaws of the Company, the laws of the State of Delaware, or the directors' and
officers' liability insurance of the Company, in each case as in effect at the
time of such act or omission, (Y) an act or omission which occurred more than
twelve (12) calendar months prior to your having been given notice of the
termination of your employment for such act or omission, unless the commission
of such act or such omission could not at the time of such commission or
omission have been known to a member of the Board (other than you, if you are
then a member of the Board), until less than twelve (12) calendar months before
such notice is given, or (Z) a continuing course of action which commenced and
was or could reasonably have been known to a member of the Board (other than
you, if applicable) more than twelve (12) calendar months prior to notice
having been given to you of the termination of your employment. Any act, or
failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the chief executive officer or
chief administrative officer of the Company or based upon the advice of counsel
for the Company will be conclusively presumed to be done, or omitted to be
done, by you in good faith and in the best interests of the Company.
Furthermore, notwithstanding anything to the contrary, you will not be deemed
to have been terminated for Cause unless and until there will have been
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 (other
than you, if you are then a member of the Board) at a meeting of the Board
called and held for such purpose (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
constituting "Cause" pursuant to this Section 4(iii) and specifying the
particulars thereof.
7
M
--. -----------------------
, 199
---------------------- ---
Page 7
(iv) Change in Control. "Change in Control" means the consummation
of a transaction or series of transactions having the effect of changing
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of the Company or its successor through the
Beneficial Ownership of voting securities of the Company or its successor, by
contract or otherwise; provided, that, without limitation, such a Change in
Control will conclusively be deemed to have occurred if:
(A) any Person is or becomes the Beneficial Owner of voting
securities of the Company representing forty (40%) or more of the
combined voting power of the Company's then outstanding voting
securities; or
(B) a merger or consolidation of the Company with any other
entity becomes effective, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) at least sixty percent (60%) of the combined voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (ii) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person acquires forty percent
(40%), or more of the combined voting power of the Company's then
outstanding securities; or
(C) the shareholders of the Company approve a plan of complete
liquidation of the Company or the shareholders of the Company or Board
approve an agreement or plan for the sale or disposition by the
Company in one transaction or a series of transactions resulting in
the acquisition by any Person of operating assets or earning power
constituting more than sixty-seven percent (67%) of the fair market
value of all operating assets or earning power of the Company and its
subsidiaries, taken as a whole;
provided, that no Change in Control will be deemed to have occurred solely by
virtue of changes of the composition of the Board, without changes in
Beneficial Ownership of the Company or its successor.
(v) Continuing Director. "Continuing Director" will mean (A) any
member of the Board as of the date of this Agreement (a "Current Director"),
(B) any person who subsequently becomes a member of the Board if such Person's
election or nomination for election to the Board is recommended or approved by
a majority of directors who are Current Directors (an "Approved Director"), or
(C) any person who subsequently becomes a member of the Board if such Person's
election or nomination for election to the Board is approved by a majority of
any and all Current Directors and Approved Directors then serving on the Board.
8
M
--. -----------------------
, 199
---------------------- ---
Page 8
(vi) Disability. "Disability" means your incapacity due to
physical or mental illness which results in your absence from the full-time
performance of your duties with the Company or its subsidiary for six (6)
consecutive months, and within thirty (30) days after written notice of
termination is given you have not returned to the full-time performance of your
duties.
(vii) Good Reason. "Good Reason" means without your express written
consent, the occurrence after a Change in Control of the Company of any of the
following circumstances:
(A) the assignment to you of any duties that you believe in
good faith to entail a substantial increase in your exposure to
potential personal liability (whether or not indemnifiable by the
Company) or a substantial increase in occupational risk to your
personal health or safety, or the assignment to you for a period in
excess of twelve months of any untitled, reduced or other capacity not
reasonably required to accomplish the transition to new control,
including but not limited to titled or untitled, advisory or
consulting positions; or
(B) a reduction by the Company or its subsidiary in your
annual base salary or a reduction in the basis on which you
participate in any material employee compensation, benefit, or welfare
plan of the Company or its subsidiary, as in effect immediately prior
to the Change in Control, other than an increase in your employee
share of premiums for such a plan which, cumulatively with any other
increases post-Change in Control, totals to no more than 20% of your
pre-Change in Control employee share of premiums; or
(C) the Company's or its subsidiary's requiring you to be
based more than fifty (50) miles further from your residence than are
the offices at which you were principally employed immediately prior
to the date of the Change in Control, except for required travel on
the business of the Company or its subsidiary that is no more than is
reasonable, for which purpose travel substantially consistent with
your present business travel obligations will be conclusively presumed
to be reasonable; or
(D) the failure by the Company or its subsidiary to pay to you
any portion of your salary, bonus, or any other compensation due to
you under any deferred compensation program, or benefit under any
employee compensation, benefit or welfare plan then in effect, within
ten (10) days of the date such compensation or benefit is due; or
(E) the failure by the Company or its subsidiary to continue
in effect any material employee compensation, benefit or welfare plan
in which you participate immediately prior to the Change in Control,
unless reasonably equivalent benefits or an equitable arrangement
(embodied in an ongoing substitute or alternative plan) have
9
M
--. -----------------------
, 199
---------------------- ---
Page 9
been made with respect to such plan, or the failure by the Company or
its subsidiary to continue your participation therein (or in such
substitute or alternative plan) on a basis not materially less
favorable, as to terms of and amount of benefits provided to you,
than existed at the time of the Change in Control; or
(F) the failure by the Company or its subsidiary to provide
you with a substantially equivalent number of paid vacation days (or
compensation in lieu thereof) to which you are entitled on the basis
of your years of service with the Company or its subsidiaries in
accordance with the normal vacation policy applicable to you
immediately prior to the Change in Control; or
(G) the failure of the Company to obtain a satisfactory
agreement from any successor or other party to assume and agree to
perform this Agreement as contemplated under Section 6, or the breach
by the Company or its subsidiary of this Agreement;
provided, however, that none of the circumstances set forth in foregoing
clauses (A) - (G) will constitute "Good Reason" unless and until you provide
the Company with written notice of the circumstance and thirty (30) days to
cure or remedy such circumstance; provided further that if after the Company
cures or remedies any such circumstance once and it reoccurs, or if the Company
remedies more than three distinct circumstances, recurring or not recurring, no
notice and opportunity to cure or remedy will be required before such
circumstance constitutes Good Reason. Anything to the contrary in this
Agreement notwithstanding, a termination of employment by you for ANY reason
during the thirty-day period (the "Thirty-day Window Period") immediately
following the first anniversary of the Change in Control will be deemed to be a
termination by you with Good Reason for all purposes of this Agreement,
provided, however, that any such termination by you during the Thirty-day
Window Period for any reason not set forth in the foregoing clauses (A)-(G)
will act to reduce the Separation Payment, to which you are then entitled for a
termination with Good Reason under Section 2(ii), by one times your Annual
Compensation.
(viii) Person. "Person" means any person or entity, or group or
association of the foregoing, other than (1) the Company, (2) any trustee,
investment advisor or other fiduciary holding, voting or otherwise exercising
control of securities under the Company's Second Amended and Restated Employee
Stock Ownership Plan dated January 1, 1994 (as amended, the "ESOP") or any
successor employee plan to the ESOP, (3) any other employee benefit plan or
employee compensation arrangement approved by Continuing Directors of the
Company, (4) any corporation owned, directly or indirectly, by the shareholders
of the Company in substantially the same proportions (relative to other
shareholders individually and in the aggregate) as their ownership of stock of
the Company, or (5) you or any group in which you are a participant, prior to
the consummation of the Change in Control, through your beneficial ownership of
equity securities; provided, however, that you will not be deemed a participant
in any group solely by virtue of being a Beneficial Owner of an investment of
$250,000.00 or less of publicly traded securities.
10
M
--. -----------------------
, 199
---------------------- ---
Page 10
5. Certain Tax Impacts.
(i) Gross-Up. Anything in this Agreement to the contrary
notwithstanding and except as set forth below, if it is determined that any
payment or distribution by the Company to or for the benefit of you (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise), but determined without regard to any additional
payments required under this Section 5 (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by you with respect to such excise tax (collectively, the "Excise
Tax"), then the Company (or its Escrow Agent or L/C Issuer, as the case may be)
will make an additional payment (a "Gross-Up Payment") in an amount such that
after payment by you of all taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(ii) Certain Tax Determinations. Subject to the provisions of Section
5(iii), all determinations required to be made under this Section 5, including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
will be made by Xxxxxx Xxxxxxxx LLP or such other certified public accounting
firm as may be designated by you (the "Accounting Firm"). The Accounting Firm
will provide detailed supporting calculations both to the Company and you
within 15 business days of the receipt of notice from you that there has been a
Payment, or such earlier time as is requested by the Company. If the
Accounting Firm is serving as consultant, accountant or auditor for the
individual, entity or group effecting the Change in Control, you will appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm will then be referred to in this
Agreement as the Accounting Firm). All fees and expenses of the Accounting
Firm will be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 5, will be paid by the Company (or its Escrow Agent or
L/C Issuer) to you within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm will be binding upon
the Company and you. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. If the Company
exhausts its remedies pursuant to Section 5(iii) and you thereafter are
required to make a payment of any Excise Tax, the Accounting Firm will
determine the amount of the Underpayment that has occurred and any such
Underpayment will be promptly paid by the Company (or its Escrow Agent or L/C
Issuer) to you.
(iii) Certain Tax Claims. You will notify the Company in writing of
any claim by the Internal Revenue Service that, if successful, would require
the payment by the Company of the Gross-Up Payment. Such notification will be
given as soon as practicable but not later than ten business days
11
M
--. -----------------------
, 199
---------------------- ---
Page 11
after you are informed in writing of such claim and will apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. You will not pay such claim prior to the expiration of the 30-day period
following the date on which you give such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies you in writing prior to the
expiration of such period that it desires to contest such claim, you will:
(A) give the Company any information reasonably requested by
the Company relating to such claim;
(B) take such action in connection with contesting such claim
as the Company reasonably requests in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company;
(C) cooperate with the Company in good faith in order
effectively to contest such claim; and
(D) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company will bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and will indemnify and hold you harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing provisions of this
Section 5(iii), the Company will control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
you to pay the tax claimed and xxx for a refund or to contest the claim in any
permissible manner, and you agree to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company will determine; provided, however,
that if the Company directs you to pay such claim and xxx for a refund, the
Company will advance the amount of such payment to you, on an interest-free
basis and will indemnify and hold you harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for your taxable year with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest will be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and you will be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
12
M
--. -----------------------
, 199
---------------------- ---
Page 12
(iv) Refunds of Tax Advances. If, after the receipt by you of an
amount advanced by the Company pursuant to Section 5(iii), you become entitled
to receive any refund with respect to such claim, you will (subject to the
Company's complying with the requirements of Section 5(iii)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by you
of an amount advanced by the Company pursuant to Section 5(iii), a
determination is made that you will not be entitled to any refund with respect
to such claim and the Company does not notify you in writing of its intent to
contest such denial of refund prior to the expiration of 30 days after such
determination, then such advance will be forgiven and will not be required to
be repaid and the amount of such advance will offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
6. Successors. If the transaction effecting the Change in Control of
the Company would not as a matter of law result in the Company's successor's or
other appropriate entity being bound to this Agreement, the Company will
require an entity that succeeds in such transaction to at least a majority of
the business and/or assets of the Company, or any other involved entity with
whom you accept employment, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
7. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement will be in writing and will be
deemed to have been duly given when delivered or mailed by personal delivery,
confirmed telefacsimile or United States registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth on
the first page of this Agreement, provided that all notices to the Company will
be directed to the attention of the Board or Chief Executive Officer with a
copy to the General Counsel of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, and no
notice will be effective until received.
8. Survival. Any rights and obligations of the Company or you
hereunder arising upon a Change in Control during the term of this Agreement
will survive the expiration or termination of this Agreement.
9. Legal Expenses; Special Damages; Arbitration.
(i) The Company will reimburse all reasonable legal and accounting
fees and expenses incurred by you as a result of or in connection with your
enforcement of your rights under this Agreement, including all such reasonable
fees and expenses, if any, incurred in seeking to obtain or enforce payment
under this Agreement or in connection with any tax audit or proceeding to the
extent set forth in Section 5. The Company will make such reimbursement
payments to you within ten (10) days after any such reasonable fees or expenses
are incurred and you have submitted copies of invoices therefor to the Company.
13
M
--. -----------------------
, 199
---------------------- ---
Page 13
(ii) If the Company withholds any material compensation or benefit
under this Agreement and it is subsequently determined in an arbitration or
judicial proceeding that you were due such amount, then in addition to any
compensatory damages you will be entitled to special damages equal to the
greater of (a) $25,000.00, or (b) three times your actual damages, but not to
exceed $100,000, as the arbitrator or judicial authority will assess in its
discretion.
(iii) Any dispute or controversy arising under or in connection with
this Agreement will be settled exclusively by arbitration conducted before a
panel of three arbitrators in Dallas, Texas in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on
the arbitrators' award in any court having jurisdiction.
(iv) Notwithstanding any of the above provisions of Section 9, you
will not be entitled to recover any legal fees or expenses (A) incurred by you
in connection with any such claim which is determined by arbitration in
accordance with Section 9(iii) of this Agreement to be frivolous or entirely
without merit, or (B) directly attributable to claims or damages which are not
contractual claims or damages for breaches of this Agreement.
10. Applicable Law. Except for matters of corporate governance and
the internal affairs of the Company bearing on this Agreement, which will be
governed by the laws of the State of Delaware, this Agreement will be construed
and enforced according to the laws of the State of Texas and the federal laws
of the United States, excluding the laws of those jurisdictions pertaining to
the resolution of conflicts of laws with other jurisdictions. Subject to
Section 9(iii): (A) the proper venues for all legal proceedings arising out of
this Agreement are Dallas County, Texas, in a state court proceeding, and the
Northern District of Texas, in a federal court proceeding, and the parties
hereby waive any defense, whether asserted by motion or pleading, that such
venue is improper, and (B) the parties consent to the personal jurisdiction of
both the courts of the State of Texas and the United States District Court for
the Northern District of Texas with respect to any litigation arising out of
the Agreement.
11. Binding Effect. The obligations of the parties will be binding
on and inure to the benefit of their respective heirs, successors, assigns, and
affiliates.
12. Integration. This Agreement constitutes the parties' entire
agreement containing its subject matter; provided, however, the Company or its
subsidiary and you are parties to an Employee Agreement defining certain rights
and obligations you have with respect to Company Private Information,
Inventions, and certain other matters defined therein, which Employee Agreement
will remain in effect in accordance with its terms. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter of this Agreement have been made by either party which are not
expressly set forth in this Agreement. Subject to the provisions of Section 1
for automatic term extensions, a waiver, discharge, amendment, modification, or
termination of this Agreement or any provision hereof, will be valid and
effective only if in writing and executed by both
14
M
--. -----------------------
, 199
---------------------- ---
Page 14
parties hereto. A written waiver of a right, remedy or obligation under a
provision of this Agreement will not constitute a waiver of the provision
itself, a waiver of any succeeding right, remedy or obligation under the
provision, or a waiver of any other right, remedy, or obligation under this
Agreement. Any delay or failure by a party in enforcing any obligation or in
exercising any right or remedy, including without limitation your delay in
exercising your right to terminate your employment for Good Reason during the
three-year period following a Change in Control and thereupon receive the
benefits specified in this Agreement, will not operate as a waiver of it or
affect that party's right later to enforce the obligation or exercise the right
or remedy, and a single or partial exercise of a right or remedy by a party
does not preclude any further exercise of it or the exercise of any other right
or remedy of that party.
13. Severability. If any provision of this Agreement is held by a
court, arbitrator or other tribunal of competent jurisdiction to be invalid,
void or unenforceable in any respect or with respect to any matter, such
provision in all other respects and with respect to all other matters, and the
remaining provisions with respect to all matters, will nevertheless continue in
full force and effect without being impaired or invalidated and will be
enforced to the full extent permitted by law.
14. Construction. Unless the context of this Agreement otherwise
requires, (a) words of any gender will be deemed to include each other gender;
(b) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular article,
section, paragraph, or other subdivision, (c) words using the singular or
plural tense will also include the plural or singular tense, respectively; (d)
the terms "Section" or "subsection" will refer to the specified Section or
subsection of this Agreement; (e) the terms of any provision of COBRA, the
Exchange Act, the Code, or any other statute, regulation, form or part thereof
will be deemed also to refer to successor provisions to such provisions; (f)
the phrase "termination of employment" and equivalent phrases will not include
reassignment, without a break in service in excess of two weeks, to another
affiliate, division or department of the Company or any of its subsidiaries;
(g) the headings of the sections of this Agreement are inserted for convenience
only and will not be deemed to constitute part of this Agreement or to affect
its construction.
[Balance of page intentionally omitted]
15
M
--. -----------------------
, 199
---------------------- ---
Page 15
If you agree to the terms of this Agreement, please sign it where indicated
below and send it back to the Company, and it will then constitute our
agreement on this subject. We have enclosed a signed duplicate Agreement for
your records.
Sincerely,
ELCOR CORPORATION
By: ------------------------------------
Xxxxxx X. Work,
Chairman of the Board, President and
Chief Executive Officer
ACCEPTED AND AGREED as of the date above written:
----------------------------------------
Note:
Agreements were entered into with twenty-four offices and employees
substantially identical to the Form of Executive Agreement. The information
contained under the caption "Change-in-Control and Severence Agreements"
on pages 15 and 16 of the Registrant's Proxy Statement dated
September 18, 1998 is incorporated by reference.
