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EXHIBIT 10Q
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of JANUARY 1, 1997, between ZENITH
ELECTRONICS CORPORATION, a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXXX (the "Executive").
WHEREAS, the Executive currently serves as SENIOR VICE PRESIDENT of the
Company; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement to provide for the continued employment of the Executive by the
Company upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive and the
Executive hereby agrees to be employed by the Company upon the terms and
subject to the conditions contained in this Agreement. The term of employment
of the Executive by the Company pursuant to this Agreement (the "Employment
Period") shall commence on the date hereof and shall end on December 31, 1999,
unless earlier terminated pursuant to Section 4, provided that the Employment
Period shall automatically be extended as of January 1, 2000 for one additional
year and, if so extended, shall automatically be further extended as of each
January 1 thereafter, for additional consecutive one-year periods, unless
either the Company or the Executive elects not to extend the Agreement by
written notice given to the other party at least 90 days prior to each such
period.
2. POSITION AND DUTIES. The Company shall employ the Executive during the
Employment Period as its SENIOR VICE PRESIDENT, ADMINISTRATION AND GENERAL
COUNSEL. The Executive shall perform faithfully and loyally and to the best of
his abilities the duties assigned to him hereunder, shall devote his full
business time, attention and effort to the affairs of the Company and shall use
his reasonable best efforts to promote the interests of the Company. The
Executive shall report to such executive officer of the Company as shall be
designated from time to time by the Chief Executive Officer of the Company (the
"CEO") or the Board of Directors of the Company (the "Board"). Notwithstanding
the foregoing, the Executive may engage in charitable, civic or community
activities and, with the prior approval of the CEO or the Board, may serve as a
director of any business corporation, provided that such activities or service
does not interfere with his duties hereunder or violate the terms of any of the
covenants contained in Section 10 or 11.
3. COMPENSATION.
(a) Base Compensation. As compensation for the services to be
provided by the Executive hereunder, the Company shall pay to the Executive
during the Employment Period a minimum annual salary of TWO HUNDRED THIRTY
THOUSAND DOLLARS ($230,000.00) (the "Base Salary"), payable in
installments in accordance with the Company's normal payment schedule for
senior management of the Company. The Executive's salary may be increased or
decreased from time to time, provided that the Executive's salary shall not be
decreased below the
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Base Salary specified by this Section 3(a). The Executive's annual
salary in effect from time to time under this Section 3(a) is hereinafter
called his "Base Compensation."
(b) Incentive Compensation. In addition to his Base Compensation, the
Executive shall be eligible to receive incentive compensation awards for
services rendered during the Employment Period, determined in accordance with
(i) the Company's annual bonus plan or any other short-term incentive plan
adopted by the Company and (ii) the 1987 Zenith Stock Incentive Plan or any
other long-term incentive plan adopted by the Company.
(c) Supplemental Profit Sharing Benefits. During the Employment Period,
the Executive shall be entitled to participate in the Zenith Electronics
Corporation Supplemental Salaried Profit Sharing Retirement Plan, as in effect
on the date hereof, or in a comparable plan adopted by the Company.
(d) Supplemental Long-Term Disability Benefits. During the Employment
Period, the Executive shall be eligible for supplemental long-term disability
benefits, the current terms of which are described on Schedule I attached
hereto.
(e) Supplemental Life Insurance Benefits. During the Employment Period,
the Executive shall be eligible for supplemental life insurance benefits, the
current terms of which are described on Schedule II attached hereto.
(f) Other Benefits. In addition to the benefits described in subsections
(c), (d) and (e) above, the Executive shall be entitled to participate in all
employee benefit plans generally available to executives who are parties to
agreements with the Company which are comparable to this Agreement, including,
as of the date of this Agreement, group medical and dental, health and
accident, group life insurance, long-term disability, short-term disability,
executive insurance, pension, profit sharing and 401(k) plans. The Executive
shall be entitled to take time off for vacation or illness in accordance with
the Company's policy for senior executives and to receive all other fringe
benefits as are from time to time made generally available to senior executives
of the Company. The Company may from time to time modify the benefits provided
to the Executive, provided that all such modifications are made on the same
basis for all executives in positions comparable to that of the Executive.
(g) Expense Reimbursement. The Company shall reimburse the Executive for
all proper expenses incurred by him in the performance of his duties hereunder
in accordance with the Company's policies and procedures.
4. TERMINATION OF EMPLOYMENT PERIOD. The Employment Period shall be
terminated upon the first to occur of (i) termination of the employment of the
Executive by the Company at any time without Cause (as such term is defined in
Section 8) upon written notice given to the Executive at least 30 days prior to
such termination, (ii) the election by the Company pursuant to Section 1 not to
extend this Agreement in accordance with Section 1, (iii) the election by the
Executive pursuant to Section 1 not to extend this Agreement in accordance with
Section 1, (iv) termination of the employment of the Executive by the Company
at any time for Cause or Serious Misconduct upon written notice given to the
Executive, (v) termination of the employment of the Executive by the Company on
account of the Executive's having become unable (as determined by the Board in
good faith) to regularly perform his duties hereunder by reason of illness or
incapacity for a period of more than 180 consecutive days, (vi) termination of
the employment of the Executive by reason of retirement, (vii) the Executive's
death or (viii) termination of employment by the Executive at any time upon
written notice given to the Company at least 90 days prior to such termination.
The date on which the Employment Period terminates is hereinafter referred to
as the "Termination Date."
5. CONSEQUENCES OF TERMINATION OUTSIDE OF A CHANGE IN CONTROL PERIOD. If
a Termination Date occurs, other than within a Change in Control Period, as
defined in Section 8, the Executive shall be entitled to receive the
compensation and benefits specified by this Section 5 in lieu of any severance
amounts which otherwise would be payable to the Executive.
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(a) Termination by Company Without Cause. If the Employment Period
terminates for a reason set forth in clause (i) of Section 4:
(i) the Company shall pay to the Executive (A) all Base Compensation
otherwise payable through the Termination Date, (B) vacation pay accrued
through the Termination Date and (C) reimbursement of expenses incurred
through the Termination Date, in each case to the extent not theretofore
paid;
(ii) the Company shall pay to the Executive the amount of the target
bonus otherwise payable for the year in which the Termination Date occurs,
prorated to the Termination Date;
(iii) if the Termination Date occurs prior to November 8, 1997, the
Company shall pay to the Executive a lump sum cash amount equal to three
times the sum of the Executive's Base Compensation and target bonus for
the year in which the Executive's Termination Date occurs or, if such
Termination Date occurs on or after November 8, 1997, the Company shall
pay to the Executive a lump sum cash amount equal to the greater of (A)
the sum of the Executive's Base Compensation and target bonus for the year
in which the Termination Date occurs, multiplied by the number of whole
and/or fractional years remaining under the term of the Employment Period
(as in effect under Section 1 without regard to the early termination
thereof under Section 4) and (B) one and one-half times the sum of the
Executive's Base Compensation and target bonus for the year in which the
Termination Date occurs;
(iv) the Company shall provide the Executive with continued coverage,
or substantially equivalent coverage, during the period represented by the
amount of the lump sum payment under clause (iii) (i.e., three years or
one and one-half years, as the case may be) under all welfare benefit
plans or arrangements (including group medical and dental, health and
accident, long-term disability, short-term disability, group life
insurance, and executive insurance programs) unless the Executive becomes
covered under similar plans or arrangements maintained by a subsequent
employer; provided that if the Company is unable to provide such continued
coverage or substantially similar coverage, the Company shall pay the
Executive a lump sum cash amount equal to the present value of such
benefits; and
(v) the Company shall provide to the Executive outplacement services
appropriate for the Executive in accordance with industry standards (the
cost of which shall not exceed 15% of the Executive's Base Compensation).
(b) Failure of Company to Renew Agreement. If the Employment Period
terminates for a reason set forth in clause (ii) of Section 4, in lieu of any
severance amounts which otherwise would be payable to the Executive, the
Company shall pay to the Executive the amounts or benefits set forth in
Sections 5(a)(i), (ii) and (v), plus a lump sum cash amount equal to one and
one-half times the sum of his Base Compensation and target bonus for the year
in which the Termination Date occurs, and shall provide to the Executive the
benefits described in Section 5(a)(iv) for the period of one and one-half years
commencing on the Termination Date.
(c) Termination for Cause. If the Employment Period terminates for a
reason set forth in clause (iv) of Section 4, the Company shall pay to the
Executive the amounts set forth in Section 5(a)(i) and the Executive shall not
be entitled to any severance payments, but shall be entitled to any benefits
payable under applicable plans.
(d) Disability, Retirement or Death. If the Employment Period terminates
for any reason set forth in clause (v), (vi) or (vii) of Section 4, the Company
shall pay to the Executive or his executor, administrator or other legal
representative, as the case may be, the amounts set forth in Section 5(a)(i)
and the Executive (or his executor, administrator or other legal
representative, as the case may be) shall not be entitled to any severance
payments, but shall be entitled to any benefits payable under applicable plans.
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(e) Failure of Executive to Renew Agreement; Other Voluntary Termination
by the Executive. If the Employment Period terminates for any reason set forth
in clause (iii) or (viii) of Section 4, (A) the Company shall pay to the
Executive the amounts set forth in Section 5(a)(i), (B) the Company may, in its
sole discretion, but shall have no obligation to, pay to the Executive the
amount of the target bonus for the year in which the Termination Date occurs,
prorated to the Termination Date, and (C) the Executive shall not be entitled
to any severance payments, but shall be entitled to any benefits payable under
applicable plans.
6. CONSEQUENCES OF TERMINATION WITHIN CHANGE IN CONTROL PERIOD.
(a) Termination Payments and Benefits. If during a Change in Control
Period, as defined in Section 8, the Employment Period of the Executive shall
terminate other than by reason of a Nonqualifying Termination, as defined in
Section 8, then the Company shall pay or provide to the Executive (or his
executor, administrator or other legal representative, as the case may be)
within 30 days following the Termination Date, as compensation for services
rendered to the Company and in lieu of any severance amounts which otherwise
would be payable to the Executive, the following amounts:
(i) the Company shall pay to the Executive a lump sum cash amount
equal to the sum of (A) the Executive's Base Compensation, accrued
vacation pay and reimbursable expenses incurred through the Termination
Date, in each case to the extent not theretofore paid, (B) the Executive's
annual bonus in an amount equal to the annualized (for any fiscal year
consisting of less than 12 full months or with respect to which the
Executive has been employed by the Company for less than 12 full months)
bonus payable to the Executive by the Company for the fiscal year in which
the Termination Date occurs (determined at the higher of the target or
actual level of performance for such year), multiplied by a fraction, the
numerator of which is the number of days in the fiscal year in which the
termination occurs prior to the Termination Date and the denominator of
which is 365 or 366, as applicable, (C) three times the Executive's
highest annual rate of Base Compensation during the three full fiscal
years prior to the Termination Date, (D) three times the greater of (I)
the Executive's highest annual bonus payable during the three full fiscal
years prior to the Termination Date and (II) the target bonus payable for
the year in which the Termination Date occurs and (E) all accruals under
the Zenith Electronics Corporation Supplemental Salaried Profit Sharing
Retirement Plan;
(ii) for a period of three years commencing on the Termination Date,
or until such earlier date on which the Executive becomes covered under
similar plans maintained by a subsequent employer, the Company shall
continue to provide the Executive and his dependents with coverage, or
shall provide substantially equivalent coverage, under all welfare benefit
plans or arrangements (including group medical and dental, health and
accident, long-term disability, short-term disability, group life
insurance and executive insurance programs) with the same level of
coverage, upon the same terms and otherwise to the same extent as such
plans or arrangements shall have been in effect immediately prior to the
Termination Date or, if more favorable to the Executive, as provided
generally with respect to other peer executives of the Company. If the
Company cannot provide such continued coverage or substantially equivalent
coverage, the Company shall pay the Executive a lump sum cash amount equal
to the present value of such coverage; and
(iii) the Company shall provide outplacement services appropriate
for the Executive in accordance with industry standards (which
shall not exceed 15% of the Executive's Base Compensation).
(b) Nonqualifying Termination Within Change in Control Period. If during
a Change in Control Period the Employment Period shall terminate by reason of a
Nonqualifying Termination, as defined in Section 8, then the Company shall pay
to the Executive (or to his executor, administrator or other legal
representative, as the case may be) within 30 days following the Termination
Date, a lump sum cash amount equal to the sum of the Executive's Base
Compensation payable through the Termination Date, any vacation pay accrued
prior to the Termination Date and any reimbursable expenses incurred prior to
the Termination Date, in each case to the extent not theretofore paid.
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7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company or its affiliated companies to
or for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Section 7) (a "Payment") would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 7(c), all determinations required
to be made under this Section 7, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the Company's
public accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15
business days of the receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the Company. In the event
that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, the Executive
shall appoint another nationally recognized public accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 7, shall be paid by the Company to the Executive
within five days of the receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable by the Executive, it
shall furnish the Executive with a written opinion that failure to report the
Excise Tax on the Executive's applicable federal income tax return would not
result in the imposition of a negligence or similar penalty. Any determination
by the Accounting Firm shall be binding upon the Company and the Executive. As
a result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 7(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall 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 shall be given as soon as
practicable but no later than 10 business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which the Executive gives 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 the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,
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(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions
of this Section 7(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided further, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income
tax (including interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and provided further, that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive 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 shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) if, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 7(c), the Executive becomes entitled to receive,
and receives, any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section 7(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after
the receipt by the Executive of an amount advanced by the Company pursuant to
Section 7(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to
the expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
8. DEFINITIONS. As used in this Agreement, the following terms shall have
the respective meanings set forth below:
(a) "Cause" means (i) embezzlement, misappropriation of corporate funds or
any other act of dishonesty by the Executive, (ii) commission by the Executive
of a felony involving moral turpitude, (iii) significant activities of the
Executive harmful to the reputation of the Company, (iv) significant violation
by the Executive of any statutory or common law duty of loyalty to the Company
or (v) a material breach by the Executive of the Executive's duties and
responsibilities to the Company, including the refusal to perform or the
substantial disregard of such duties, other than as a result of incapacity due
to physical or mental illness.
(b) "Change in Control" means:
(1) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934 (the "Exchange Act"), of beneficial
ownership within the meaning of Rule 13d-3 promulgated under the Exchange
Act, of 25% or more of either (i) then outstanding shares of common stock
of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of then outstanding securities
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of the Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"), provided such ownership
interest is greater than the interest then owned by LG Electronics,
Inc. ("LGE"); excluding, however, the following: (A) any acquisition
directly from the Company (excluding any acquisition resulting from the
exercise of an exercise, conversion or exchange privilege unless the
security being so exercised, converted or exchanged was acquired directly
from the Company), (B) any acquisition by the Company or LGE, (C) any
acquisition by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or
(D) any acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of subsection (3) of this
Section 8(b); provided further, that for purposes of clause (B), if any
Person (other than the Company, LGE or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company) shall become the beneficial owner of 25% or
more of the Outstanding Company Common Stock or 25% or more of the
Outstanding Company Voting Securities by reason of an acquisition by the
Company (and which ownership interest is greater than the interest then
owned by LGE), and such Person shall, after such acquisition by the
Company, become the beneficial owner of any additional shares of the
Outstanding Company Common Stock or any additional Outstanding Company
Voting Securities and such beneficial ownership is publicly announced,
such additional beneficial ownership shall constitute a Change in Control;
(2) individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of such Board; provided that any individual who becomes a director of the
Company subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by the vote of at
least a majority of the directors then comprising the Incumbent Board
shall be deemed a member of the Incumbent Board; and provided further,
that any individual who was initially elected as a director of the Company
as a result of an actual or threatened election contest, as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act,
or any other actual or threatened solicitation of proxies or consents by
or on behalf of any Person other than the Board shall not be deemed a
member of the Incumbent Board;
(3) approval by the stockholders of the Company of a reorganization,
merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Corporate
Transaction"); excluding, however, a Corporate Transaction pursuant to
which (i) all or substantially all of the individuals or entities who are
the beneficial owners, respectively, of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities immediately prior to
such Corporate Transaction will beneficially own, directly or indirectly,
more than 60% of, respectively, the outstanding shares of common stock,
and the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of
the Company's assets either directly or indirectly) in substantially the
same proportions relative to each other as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may be,
(ii) no Person (other than: the Company or LGE; any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; the corporation resulting from such
Corporate Transaction; and any Person which beneficially owned,
immediately prior to such Corporate Transaction, directly or indirectly,
25% or more of the Outstanding Company Common Stock or the Outstanding
Company Voting Securities, as the case may be) will beneficially own,
directly or indirectly, 25% or more of, respectively, the outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding securities of
such corporation entitled to vote generally in the election of directors
and (iii) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors of
the corporation resulting from such Corporate Transaction; or
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(4) approval by the stockholders of the Company of a plan of complete
liquidation or dissolution of the Company.
(c) "Change in Control Period" means the period of time beginning on the
date on which a Change in Control is consummated and ending on the earlier to
occur of (i) 24 months following such Change in Control and (ii) the
Executive's death.
(d) "Good Reason" means, without the Executive's express written consent,
the occurrence of any of the following events within a Change in Control
Period:
(1) any of (i) the assignment to the Executive of any duties
inconsistent in any material respect with the Executive's position(s),
duties, responsibilities or status with the Company immediately prior to
the commencement of such Change in Control Period, (ii) a change in the
Executive's reporting responsibilities, titles or offices with the Company
as in effect immediately prior to the commencement of such Change in
Control Period or (iii) any failure to re-elect the Executive to any
position with the Company held by the Executive immediately prior to the
commencement of such Change in Control Period;
(2) a reduction by the Company in the Executive's rate of Base
Compensation as in effect immediately prior to the commencement of such
Change in Control Period or as the same may be increased from time to time
thereafter or the failure by the Company to increase such rate of Base
Compensation each year after the commencement of such Change in Control
Period by an amount which at least equals, on a percentage basis, the mean
average percentage increase, during the two full fiscal years of the
Company immediately preceding the commencement of such Change in Control
Period, in the rates of base salary for all officers of the Company
elected by the Board;
(3) the failure of the Company to pay the Executive a bonus at or
greater than the target level in effect in the year in which the Change in
Control Period commences, or to continue the Executive's participation in
the 1987 Zenith Stock Incentive Plan or any comparable long-term incentive
plan;
(4) any requirement of the Company that the Executive (i) be based
anywhere other than at the facility where the Executive is located
immediately prior to the commencement of such Change in Control Period or
(ii) travel on Company business to an extent substantially more burdensome
than the travel obligations of the Executive immediately prior to the
commencement of such Change in Control Period;
(5) an election by the Company not to extend the Employment Period in
accordance with Section 1;
(6) the failure of the Company to (i) continue in effect any employee
benefit plan or compensation plan in which the Executive is participating
immediately prior to the commencement of such Change in Control Period,
unless the Executive is permitted to participate in other plans providing
the Executive with substantially comparable benefits, or the taking of any
action by the Company which would adversely affect the Executive's
participation in or materially reduce the Executive's benefits under any
such plan, (ii) provide the Executive and the Executive's dependents
welfare benefits (including, without limitation, group medical and dental,
health and accident, long-term disability, short-term disability, group
life insurance, and executive insurance programs) in accordance with the
most favorable plans, practices, programs and policies of the Company and
its affiliated companies in effect for the Executive immediately
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prior to the commencement of such Change in Control Period or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies, (iii) provide fringe benefits in accordance with the
most favorable plans, practices, programs and policies of the Company and
its affiliated companies in effect for the Executive immediately prior to
the commencement of such Change in Control Period or, if more favorable to
the Executive, as in effect generally at any time thereafter with respect
to other peer executives of the Company and its affiliated companies, (iv)
provide the Executive with paid vacation in accordance with the most
favorable plans, policies, programs and practices of the Company and its
affiliated companies as in effect for the Executive immediately prior to
the commencement of such Change in Control Period or, if more favorable to
the Executive, as in effect generally at any time thereafter with respect
to other peer executives of the Company and its affiliated companies, or
(v) reimburse the Executive promptly for all reasonable employment
expenses incurred by the Executive in accordance with the most favorable
policies, practices and procedures of the Company and its affiliated
companies in effect for the Executive immediately prior to the
commencement of such Change in Control Period, or if more favorable to the
Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies; or
(7) the failure of the Company to obtain the assumption agreement
from any successor as contemplated in Section 18(b).
For purposes of this Agreement, any good faith determination of Good
Reason made by the Executive shall be conclusive; provided, however, that an
isolated, insubstantial and inadvertent action taken in good faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive shall not constitute Good Reason.
(e) "Nonqualifying Termination" means a termination of the Employment
Period (i) by the Company for Serious Misconduct, (ii) by the Executive as a
result of his election pursuant to Section 1 not to extend the Agreement in
accordance with Section 1 or by the Executive at any other time for any reason,
in either case other than for Good Reason, (iii) as a result of the Executive's
death or (iv) by the Company due to the Executive's absence from his duties
with the Company on a full-time basis for at least 180 consecutive days as a
result of the Executive's incapacity due to physical or mental illness. A
termination of the Employment Period for any reason not expressly set forth in
the preceding sentence, including, without limitation, the election by the
Company not to extend the Agreement pursuant to Section 1, shall not constitute
a Nonqualifying Termination.
(f) "Serious Misconduct" means (i) embezzlement or misappropriation of
corporate funds by the Executive, (ii) commission by the Executive of a felony
involving moral turpitude or (iii) a material breach by the Executive of the
Executive's duties and responsibilities to the Company as in effect prior to
the commencement of the Change in Control Period, including the refusal to
perform or the substantial disregard of such duties, other than as a result of
incapacity due to physical or mental illness, which is demonstrably willful and
deliberate, which is committed in bad faith or without a reasonable belief that
the breach is in the Company's best interests, and which is not remedied within
a reasonable period of time after receipt of written notice of such breach.
9. FEDERAL AND STATE WITHHOLDING. The Company shall deduct from the
amounts payable to the Executive pursuant to this Agreement the amount of all
required federal and state withholding taxes in accordance with the Executive's
Form W-4 on file with the Company and all applicable social security taxes.
10. NONCOMPETITION; NONSOLICITATION. (a) The Executive acknowledges
that in the course of his employment with the Company pursuant to this
Agreement he will become familiar, and during the course of his employment with
the Company or any of its subsidiaries prior to the date of this Agreement he
has become familiar, with trade secrets and customer lists of, and other
confidential information concerning, the Company and its subsidiaries and that
his services have been and will be of special, unique and extraordinary value
to the Company.
(b) The Executive agrees that during the Employment Period and, if the
Employment Period terminates for a reason set forth in clause (i) or (ii) of
Section 4, for a period of two years thereafter (the "Noncompetition Period"),
he shall not in any manner, directly or indirectly, through any person, firm or
corporation, alone or as a member of a partnership or as an officer, director,
stockholder, investor or employee of or consultant to any other corporation or
enterprise or otherwise, engage or be engaged, or assist any other person,
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firm, corporation or enterprise in engaging or being engaged, in any business
being conducted by the Company or any of its subsidiaries as of the termination
of the Employment Period in any geographic area in which the Company is then
conducting such business.
(c) The Executive further agrees that during the Noncompetition Period he
shall not in any manner, directly or indirectly induce or attempt to induce any
employee of the Company or any of its subsidiaries to terminate or abandon his
or her employment for any purpose whatsoever.
(d) Nothing in this Section 10 shall prohibit the Executive from being (i)
a stockholder in a mutual fund or a diversified investment company or (ii) a
passive owner of not more than two percent of the outstanding stock of any
class of a corporation any equity securities of which are publicly traded, so
long as the Executive has no active participation in the business of such
corporation.
(e) If, at any time of enforcement of this Section 10, a court holds that
the restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area and that the court shall be allowed to revise
the restrictions contained herein to cover the maximum period, scope and area
permitted by law.
11. CONFIDENTIALITY. The Executive shall not, at any time during the
Employment Period or thereafter, make use of or disclose, directly or
indirectly, any trade secret or other confidential or secret information of the
Company or of its subsidiaries or other technical, business, proprietary or
financial information of the Company or of its subsidiaries not available to
the public generally or to the competitors of the Company or of its
subsidiaries ("Confidential Information"), except to the extent that such
Confidential Information (a) becomes a matter of public record or is published
in a newspaper, magazine or other periodical available to the general public,
other than as a result of any act or omission of the Executive, or (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency. Promptly following the
termination of the Employment Period, the Executive shall surrender to the
Company all records, memoranda, notes, plans, reports, computer tapes and
software and other documents and data relating to any Confidential Information
or the business of the Company or of its subsidiaries which he may then possess
or have under his control (together with all copies thereof); provided,
however, that the Executive may retain copies of such documents as are
necessary for the preparation of his federal or state income tax returns.
12. ENFORCEMENt. The parties hereto agree that the Company would be
damaged irreparably in the event any provision of Sections 10 or 11 of this
Agreement were not performed in accordance with their respective terms or were
otherwise breached and that money damages would be an inadequate remedy for any
such nonperformance or breach. Therefore, the Company or its successors or
assigns shall be entitled, in addition to other rights and remedies existing in
their favor, to an injunction or injunctions to prevent any breach or
threatened breach of any of such provisions and to enforce such provisions
specifically (without posting a bond or other security).
13. SURVIVAL. Sections 10, 11 and 12 of this Agreement and any rights
and remedies arising out of this Agreement shall survive and continue in full
force and effect in accordance with the respective terms hereof,
notwithstanding any termination of the Employment Period.
14. REIMBURSEMENT OF EXPENSES. If any contest or dispute shall arise under
this Agreement involving termination of the Executive's employment with the
Company or involving the failure or refusal of the Company to perform fully in
accordance with the terms hereof, the Company shall reimburse the Executive, on
a current basis, for all legal fees and expenses, if any, incurred by the
Executive in connection with such contest or dispute, together with interest in
an amount equal to the prime rate from time to time in effect, as published in
The Wall Street Journal under "Money Rates," but in no event higher than the
maximum legal rate permissible under applicable law, such interest to accrue
from the date the Company receives the Executive's statement for such fees and
expenses through the date of payment thereof; provided, however, that in the
event the resolution of any such
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contest or dispute includes a finding denying, in total, the Executive's
claims in such contest or dispute, the Executive shall be required to reimburse
the Company, over a period of 12 months from the date of such resolution, for
all sums advanced to the Executive pursuant to this Section 14.
15. NOTICES. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered, when delivered by courier or overnight express
service or five days after having been sent by certified or registered mail,
postage prepaid, addressed (a) if to the Executive, to the Executive's address
set forth in the records of the Company or, if to the Company, to Xxxxxx X.
Xxxxxxxxx, Vice President, Human Resources, Zenith Electronics Corporation,
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 or (b) to such other address as
either party may have furnished to the other party in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
16. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes and preempts any prior understanding, agreements or representations
by or between the parties, written or oral, which may have related in any
manner to the subject matter hereof other than rights to indemnification, if
any, for the benefit of the Executive. Pursuant to, but not in limitation of,
the foregoing sentence, the following agreements between the Company and the
Executive shall be terminated, effective as of the date hereof, and shall have
no further force or effect: (i) the Agreement dated August 29, 1994, (ii) the
Supplemental Letter Agreement, and an Addendum thereto, both dated August 29,
1994, and (iii) an Addendum Number Two to Supplemental Letter Agreement dated
April 4, 1995. Such termination shall have no effect upon the vesting of
options and restricted stock (if any) pursuant to such agreements, which
options and restricted stock shall remain fully vested.
18. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement shall not be terminated by any merger or consolidation
of the Company whereby the Company is or is not the surviving or resulting
corporation or as a result of any transfer of all or substantially all of the
assets of the Company. In the event of any such merger, consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon the
surviving or resulting corporation or the person or entity to which such assets
are transferred.
(b) The Company agrees that concurrently with any merger, consolidation or
transfer of assets referred to in paragraph (a) of this Section 18, it will
cause any successor or transferee unconditionally to assume, by written
instrument delivered to the Executive (or his executor, administrator or other
legal representative, as the case may be), all of the obligations of the
Company hereunder. Failure of the Company to obtain such assumption prior to
the effectiveness of any such merger, consolidation or transfer of assets shall
be a breach of this Agreement and shall entitle the Executive to compensation
and other benefits from the Company in the same amount and on the same terms as
the Executive would be entitled hereunder if the Executive's employment were
terminated during a Change in Control Period other than by reason of a
Nonqualifying Termination. For purposes of implementing the foregoing, the
date on which any such merger, consolidation or transfer becomes effective
shall be deemed the Termination Date.
(c) This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amounts would be payable to the Executive hereunder had the
Executive continued to
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live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to such person or persons
appointed in writing by the Executive to receive such amounts or, if no person
is so appointed, to the Executive's estate.
19. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Illinois without
regard to the principle of conflict of laws.
20. AMENDMENT AND WAIVER. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Company and the Executive,
and no course of conduct or failure or delay in enforcing the provisions of
this Agreement shall affect the validity, binding effect or enforceability of
this Agreement.
21. COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original and both of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ZENITH ELECTRONICS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Its: President and CEO
---------------------------------
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
XXXXXXX X. XXXXXX
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SCHEDULE I
SUPPLEMENTAL LONG-TERM DISABILITY BENEFITS
(a) Purpose. The benefits provided by this Schedule shall be in addition
to the benefits provided by the long term disability plan maintained by the
Company for salaried employees as of the date hereof (the "LTD Plan"),
provided, however, that no benefits shall be payable under this Schedule if the
Executive does not elect to participate in the LTD Plan.
(b) Definitions. As used in this Schedule, the following terms shall have
the following respective meanings:
(1) "Disability" means the inability of the
Executive arising during his employment by the Company to
perform the duties pertaining to the employment position
held by the Executive with the Company at the inception
of such disability, if such inability is due to sickness
or injury. If such disability continues for a period of
more than 180 days, it shall become a "total long term
disability" effective upon the expiration of such 180
days. The terms "disability" and "total long term
disability" exclude disability resulting from intentional
self-inflicted injuries or sickness.
(2) "Maximum monthly salary" of the Executive
means the maximum amount of monthly salary specified in
the LTD Plan on which the benefit payments under such
plan will be calculated and based. (As of the date
hereof, benefits under the LTD Plan are 66-2/3% of
monthly salary. The maximum monthly salary thereunder is
$6,000 and the maximum monthly benefit thereunder is
$4,000.)
(c) Benefits Payable. The amount of monthly benefits payable by the
Company to the Executive during a total long term disability of the Executive
shall be 66-2/3% of the amount, if any, by which the actual monthly salary he
was receiving immediately prior to the commencement of his disability exceeds
his maximum monthly salary as heretofore defined, provided, however, that if
such actual monthly salary exceeds $12,500, then the amount of such benefits
payable by the Company to the Executive shall be limited to 66-2/3% of the
amount by which $12,500 exceeds his maximum monthly salary.
(d) Exclusion. No benefits shall be payable under this Schedule if
the LTD Plan has been terminated prior to the date of the commencement of
the disability.
(e) Period of Benefit Payment. Benefits shall be payable by
the Company to the Executive upon the commencement of the total long term
disability (180 days after inception of the disability) and thereafter as long
as both of the following conditions continue to be satisfied:
(i) The long term disability continues, and
(II) The Executive is under the care of a
physician.
Notwithstanding the foregoing, the benefits hereunder shall cease and terminate
upon the first of the following to occur:
(i) The cessation of the total long term
disability.
(ii) The death of the Executive.
(iii) The failure of the Executive to comply
with Subsection (i) of this Schedule.
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(iv) The cessation of the payment of
benefits to the Executive under the LTD Plan for any
reason not specified above.
(f) Reduction or Termination of Benefits. If during the period of total
long term disability the Executive becomes employed by any employer (including
the Company) in a position other than the employment position held by the
Executive with the Company at the inception of such disability or if it is
determined that the Executive is medically able to work in another such
position, the Company shall then or at any time or times thereafter have the
right to reduce the amount of benefits provided hereunder to any lesser amount
specified by the Company or discontinue such benefits altogether.
(g) Effect of Termination of Long Term Disability Plan. In the event the
Executive elects not to participate or elects to terminate his participation in
the LTD Plan, then this Schedule shall be of no further force and effect, and
the Company shall have no obligation to provide the benefits described herein.
In the event the Executive does participate in and does not terminate his
participation in the LTD Plan, and the LTD Plan is terminated by the Company
subsequent to the commencement of the disability, the Executive shall
nevertheless continue to be entitled to the benefits provided hereunder and, in
addition, the Company shall be obligated to provide, and the Executive shall be
entitled to receive, long term disability benefits in the same amounts and
under the same terms and conditions as if the LTD Plan remained in full force
and effect. Nothing herein shall prohibit the Company from at any time, or
from time to time, establishing a substitute plan or plans for the LTD Plan, in
which event: (1) the Company shall be relieved of its obligation to continue
payment of benefits under the terminated LTD Plan and shall be obligated to
provide benefits under the substituted plan or plans; and (2) "maximum monthly
salary" defined in Subsection (b)(2) above shall mean the maximum monthly
salary specified in such substitute plan or plans.
(h) Determinations. All determinations as to whether a disability or
total long term disability exists at any time or has ceased to exist, all
determinations as to date of commencement or cessation of such disability or
total long term disability and all determinations as to whether the Executive
is medically able to work in another position as provided in Subsection (f)
shall be made by the Company's Corporate Medical Director (or if at any time no
person holds such a position with the Company, then by any physician designated
by the Company from time to time), which determination shall be final and
binding on the parties hereto regardless of whether such determination is in
accord with any medical or other decision made under the LTD Plan.
(i) Medical Examinations and Data. The Company at its own expense shall
have the right and opportunity to make a medical examination of the person of
the Executive in the event of a sickness or injury of the Executive which
constitutes or might constitute a disability or a total long term disability as
herein defined and as often as the Company may require. Such examination shall
be conducted by the Company's Corporate Medical Director or any physician
designated by the Company from time to time. The Executive agrees to submit to
all such examinations. In addition, the Company shall be entitled to examine
and obtain copies of all medical records pertaining to such sickness or injury
of any licensed physician, hospital, organization, institution or person and
the Executive agrees to furnish the Company with written authorization to
examine and obtain copies of such records as often as required by the Company.
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SCHEDULE II
SUPPLEMENTAL LIFE INSURANCE BENEFITS
(a) Supplemental Life Insurance Benefit. The life insurance benefits
provided in this Schedule shall be in addition to any group term life insurance
program applying generally to salaried employees. In the event the Executive's
employment with the Company is terminated for any reason, other than by death,
prior to age fifty-five (55), no benefits shall be paid pursuant to this
Schedule.
(b) Benefit Amount - Preretirement. If the Executive shall die prior to
retirement, the Company shall pay to the beneficiary designated by the
Executive in writing (or, if the Executive fails to designate a beneficiary, to
the Executive's estate) a lump sum equal to one and one-half (1-1/2) times the
Executive's base salary at the date of death.
(c) Benefit Amount - Postretirement. The life insurance benefits provided
under this Schedule shall continue for a period of ten (10) years from the date
of the Executive's retirement. If the Executive shall die within one year
after the date of retirement, the Company shall pay to the beneficiary
designated by the Executive in writing (or, if the Executive fails to designate
a beneficiary, to the Executive's estate) a lump sum equal to one and one-half
(1-1/2) times the Executive's base salary in effect on the date of the
Executive's retirement. Thereafter, on each yearly anniversary after
commencement of such ten (10) year period, the amount of such life insurance
benefit shall be decreased by ten percent (10%) of the amount of such benefit
in effect at the commencement of such ten (10) year period. If the Executive
is alive on the tenth (10th) anniversary of the commencement of such ten (10)
year period, the life insurance benefits provided under this Schedule shall
cease and expire and be of no further force and effect and the Company shall
have no further obligation hereunder.
(d) Purchase of Life Insurance Policy. The Company may, but is not
required to, purchase a life insurance policy to fund the life insurance
benefits payable to the Executive hereunder. If such an insurance policy is
purchased by the Company, such policy shall name the Company as owner and
beneficiary and, when purchased, shall remain a general unsecured, unrestricted
asset of the Company, and neither the Executive nor any beneficiary of the
Executive shall have any rights with respect to, or claim against, such policy.
Such policy, if and when purchased by the Company, shall not be deemed to be
held under any trust for the benefit of the Executive or any beneficiary of the
Executive, nor shall such policy be deemed to be held in trust as collateral
security for fulfilling the obligations of the Company hereunder. The benefits
provided to the Executive and any beneficiary of the Executive under this
Schedule are based upon the general credit of the Company and are otherwise
unsecured. In the event the Company shall purchase a life insurance policy as
set forth in this Subsection (d), and if a medical examination or examinations
of the Executive and/or the furnishing of a health statement signed by the
Executive (which statement may include an authorization by the Executive to any
licensed physician or any organization, institution, or person that has
knowledge of the Executive or his dependents to give such information to the
insurer), is requested by the insurer, then the Executive agrees to submit to
such examination or examinations or to provide such health statement in
whatever form required by the insurer. If the Executive refuses to submit to
such examination or examinations or to provide such health statement, then
neither the Executive nor any beneficiary of the Executive shall have any right
to the life insurance benefits provided under this Schedule and the Company
shall have no further obligation hereunder.
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