Exhibit 10.5
EMPLOYMENT (CHANGE OF CONTROL) AGREEMENT
AGREEMENT made as of this 21st day of August, 1996 by and between Xxxxxxxx,
Inc., a Minnesota corporation with its principal offices at Northfield,
Minnesota ("Sheldahl") and Xxxxx X. Xxxxxxx (the "Executive").
WHEREAS, Xxxxxxxx considers the establishment and maintenance of a sound
and vital management to be essential to protecting and enhancing the best
interests of Xxxxxxxx and its shareholders; and
WHEREAS, the Executive has made and is expected to make, due to Executive's
intimate knowledge of the business and affairs of Xxxxxxxx, its policies,
methods, personnel and problems, a significant contribution to the
profitability, growth and financial strength of Xxxxxxxx; and
WHEREAS, Xxxxxxxx, as a publicly held corporation, recognizes that the
possibility of a Change in Control may exist and that such possibility and
the uncertainty and questions which it may raise among management, may
result in the departure or distraction of the Executive in the performance
of the Executive's duties to the detriment of Xxxxxxxx and its shareholders;
and
WHEREAS, Executive is willing to remain in the employ of Xxxxxxxx upon the
understanding that Xxxxxxxx will provide income security if the Executive's
employment is terminated under certain terms and conditions; and
WHEREAS, it is in the best interests of Xxxxxxxx and its stockholders to
reinforce and encourage the continued attention and dedication of management
personnel, including Executive, to their assigned duties without distraction
and to ensure the continued availability to Xxxxxxxx of the Executive in the
event of a Change in Control.
THEREFORE, in consideration of the foregoing and other respective covenants
and agreements of the parties herein contained, the parties hereto agree as
follows:
1. Term of Agreement. This Agreement shall commence on the date hereof
and shall continue in effect until August 21, 1999. After August 21,
1999, this Agreement shall automatically renew for successive one-
year periods unless Xxxxxxxx notifies the Executive of termination
of the Agreement at least sixty (60) days prior to the end of the
initial term or any renewal term. Notwithstanding the preceding
sentence, if a Change in Control occurs, this Agreement shall
continue in effect for a period of 36 months from the date of the
occurrence of a Change in Control. Notwithstanding anything herein
to the contrary, the Executive's employment shall be at all times at
the will of Xxxxxxxx, and nothing in this Agreement shall prohibit
or limit the right of Xxxxxxxx or Executive, prior to a Change in
Control, to terminate the employment of Executive for any reason or
for no reason.
2. Change in Control. No benefits shall be payable hereunder unless
there shall have been a Change in Control, as set forth below.
(a) For purposes of this Agreement, a "Change in Control" of Xxxxxxxx
shall mean a change in control which would be required to be reported
in response to Item 1 of Form 8-K promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether or not
Xxxxxxxx is then subject to such reporting requirement, including,
without limitation, if:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
of Xxxxxxxx representing 20% or more of the combined voting power
of Xxxxxxxx'x then outstanding securities;
(ii) there ceases to be a majority of the Board of Directors comprised
of : (A) individuals who on the date hereof constituted the Board
of Xxxxxxxx, and (b) any new director who subsequently was elected
or nominated for election by a majority of the directors who held
such office immediately prior to a Change in Control; or
(iii) Xxxxxxxx disposes of at least 75% of its assets, other than to an
entity owned 50% or greater by Xxxxxxxx or any of its subsidiaries.
(b) A Change in Control which arises from a transaction or series of
transactions which are not authorized, recommended or approved by
formal action taken by the Board of Directors as determined in
Section 2(a)(ii) above shall be referred to as an "Unapproved Change
in Control." A Change in Control which has been authorized,
recommended or approved by the Board of Directors as determined in
Section 2(a)(ii) above shall be referred to as an "Approved Change
in Control."
(c) Executive agrees that, subject to the terms and conditions of this
Agreement, in the event of a Change in Control of Xxxxxxxx occurring
after the date hereof, Executive will remain in the employ of Xxxxxxxx
for a period of 12 months from the occurrence of such Change in
Control of Xxxxxxxx.
3. Termination Following Change in Control. If a Change in Control
shall have occurred during the term of this Agreement and Executive's
employment is thereafter terminated, Executive shall be entitled to
the benefits provided in subsection 4(d) unless such termination is
(A) because of Executive's Death or Retirement, (B) by Xxxxxxxx for
Cause or Disability, or (C) by Executive other than for Good Reason.
(a) Disability; Retirement. If, as a result of incapacity due
to physical or mental illness, the Executive shall have been
absent from the full-time performance of Executive's duties with
Xxxxxxxx for six consecutive months, and within 30 days after
written Notice of Termination is given the Executive shall not have
returned to the full-time performance of the Executive's duties,
Xxxxxxxx may terminate Executive's employment for "Disability".
Any question as to the existence of Executive's Disability upon
which Executive and Xxxxxxxx cannot agree shall be determined by
a qualified independent physician selected by Executive (or, if the
Executive is unable to make such selection, it shall be made by
any adult member of the Executive's immediate family), and approved
by Xxxxxxxx. The determination of such physician made in writing
to Xxxxxxxx and to Executive shall be final and conclusive for all
purposes of this Agreement. Termination by Executive of Executive's
employment based on "Retirement" shall mean retirement at or after
the date the Executive has attained age 65.
(b) Cause. Termination by Xxxxxxxx of Executive's employment for "Cause"
shall mean: (i) the willful and continued failure of Executive to
perform his essential duties; (ii) the willful engaging by Executive
in illegal conduct, or (iii) gross misconduct materially injurious
to Xxxxxxxx, which, in the case of clause (i) and (iii), the
Executive has not cured, in the sole opinion of the Board,
determined in good faith, within 10 days of receipt of the Notice
of Termination.
(c) Good Reason. Executive shall be entitled to terminate his employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean, without Executive's express written consent, any of the
following:
(i) the assignment to Executive of any duties inconsistent with
Executive's status or position with Xxxxxxxx, or a substantial
reduction in the nature or status of Executive's responsibilities
from those in effect immediately prior to the Change in Control;
(ii) a reduction by Xxxxxxxx in Executive's annual base salary in effect
immediately prior to a Change in Control;
(iii) the relocation of Xxxxxxxx'x principal executive offices to a
location more than fifty miles from Northfield, Minnesota or
Sheldahl requiring Executive to be based anywhere other than
Xxxxxxxx'x principal executive offices except for required travel
on Xxxxxxxx'x business to an extent substantially consistent with
Executive's prior business travel obligations;
(iv) the failure by Xxxxxxxx to continue to provide Executive with
benefits a least as favorable to those enjoyed by Executive under
any of Xxxxxxxx'x pension, life insurance, medical, health and
accident, disability, deferred compensation, incentive awards,
incentive stock options, or savings plans in which Executive was
participating at the time of the Change in Control, the taking of
any action by Xxxxxxxx which would directly or indirectly materially
reduce any of such benefits or deprive Executive of any material
fringe benefit enjoyed at the time of the Change in Control, or the
failure by Xxxxxxxx to provide Executive with the number of paid
vacation days to which Executive is entitled at the time of the
Change in Control, provided, however, that Xxxxxxxx may amend any
such plan or programs as long as such amendments do not reduce any
benefits to which Executive would be entitled upon termination;
(v) the failure of Xxxxxxxx to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement, as
contemplated in Section 5; or
(vi) any purported termination of Executive's employment which is not
made pursuant to a Notice of Termination satisfying the requirements
of subsection (e) below; for purposes of this Agreement, no such
purported termination shall be effective.
(d) Voluntary Termination Deemed Good Reason. Notwithstanding anything
herein to the contrary, Executive may voluntarily terminate his
employment for any reason during the period commencing on the first
anniversary of the Change in Control and ending 30 days thereafter.
If an Unapproved Change in Control occurs, Executive may, in addition
to the opportunity provided in the preceding sentence, voluntarily
terminate his employment for any reason during the period commencing
on the 91st day following a Change in Control and ending on the 180th
day following a Change in Control. Any such termination shall be
deemed "Good Reason" for all purposes of this Agreement.
(e) Notice of Termination. Any purported termination of Executive's
employment by Xxxxxxxx or by Executive shall be communicated by
written Notice of Termination to the other party hereto in
accordance with Section 7. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon
and shall set forth the facts and circumstances claimed to provide
a basis for termination of Executive's employment.
(f) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean:
(i) if Executive's employment is terminated for Disability, 30 days
after Notice of Termination is given (provided that the Executive
shall not have returned to the full-time performance of the
Executive's duties during such 30 day period); and
(ii) if Executive's employment is terminated pursuant to subsections
(b), (c) or (d) above or for any other reason (other than Disability),
the date specified in the Notice of Termination (which, in the case
of a termination pursuant to subsection (b) above shall not be
less than 10 days, and in the case of a termination pursuant to
subsection (c) or (d) above shall not be less than 10 nor more than
30 days, respectively, from the date such Notice of Termination is
given).
(g) Dispute of Termination. If, within 10 days after any Notice of
Termination is given, the party receiving such Notice of Termination
notifies the other party in good faith that a dispute exists
concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual
written agreement of the parties, or by a final judgement, order or
decree of a court of competent jurisdiction in accordance with
subsection 11(a) (which is not appealable or the time for appeal
therefrom having expired and no appeal having been perfected);
provided, that the date of Termination shall be extended by a
notice of dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any
such dispute, Xxxxxxxx shall continue to pay Executive full
compensation in effect when the notice giving rise to the dispute
was given (including, but not limited to, base salary) and continue
Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was participating when
the notice giving rise to the dispute was given, until the dispute
is finally resolved in accordance with this subsection. Amounts
paid under this subsection are in addition to all other amounts
due under this Agreement and shall not be offset against or reduce
any other amounts under this Agreement.
4. Compensation Upon Termination or During Disability. Following a
Change in Control of Xxxxxxxx, as defined in subsection 2(a), upon
termination of Executive's employment or during a period of
Disability, Executive shall be entitled to the following benefits:
(a) During any period that Executive fails to perform full-time duties
with Xxxxxxxx as a result of a Disability, Xxxxxxxx shall pay
Executive the base salary of the Executive at the rate in effect at
the commencement of any such period, until such time as the Executive
is determined to be eligible for long term disability benefits in
accordance with Xxxxxxxx'x insurance programs then in effect.
(b) If Executive's employment shall be terminated by Xxxxxxxx for Cause
or by Executive other than for Good Reason or Retirement, Xxxxxxxx
shall pay to Executive his full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination
is given and Xxxxxxxx shall have no further obligation to Executive
under this Agreement.
(c) If Executive's employment shall be terminated by Xxxxxxxx for
Disability or by Executive for Retirement, or by reason of Death,
Xxxxxxxx shall immediately commence payment to the Executive (or
Executive's designated beneficiaries or estate, if no beneficiary
is designated) any and all benefits to which the Executive is
entitled under Xxxxxxxx'x retirement and insurance programs then
in effect.
(d) If Executive's employment by Xxxxxxxx shall be terminated (A) by
Xxxxxxxx other than for Cause or Disability or (B) by Executive for
Good Reason, then Executive shall be entitled to the benefits
provided below:
(i) Xxxxxxxx shall pay Executive the Executive's full base salary
through the Date of Termination at the rate in effect at the time
the Notice of Termination is given;
(ii) In lieu of any further salary payments for periods subsequent to
the Date of Termination, Xxxxxxxx shall pay a severance payment (the
"Severance Payment") equal to the amount described in (A) or (B)
below, whichever is applicable: (A) if an Unapproved Change in
Control occurs, 2.99 times the average of the annual compensation
paid to Executive by Xxxxxxxx (or any corporation ("Affiliate")
affiliated with Xxxxxxxx within the meaning of Section 1504 of
the Internal Revenue Code of 1986, as amended (the "Code")) and
includable in Executive's gross income for federal income tax
purposes for the five calendar years (or, if Executive has been
employed by Xxxxxxxx for less than five years, the number of
complete calendar years of employment) (the "Base Period") preceding
the earlier of the calendar year in which a Change in Control of
Xxxxxxxx occurred or the calendar year of the Date of Termination;
or (B) if an Approved Change of Control occurs, 1.5 times such
compensation. Such average shall be determined in accordance with
the temporary or final regulations promulgated under Section 280G(e)
of the Code. For purposes of this Section 4, except as provided in
the next sentence, compensation payable to Executive by Xxxxxxxx
(or an Affiliate) shall include every type and form of compensation
includable in Executive's gross income for federal income tax
purposes. Compensation shall exclude compensation recognized as
the result of the exercise of stock options or sale of the stocks
acquired or any payments actually or constructively received with
respect to a plan of deferred compensation between Xxxxxxxx and
Executive. The Severance Payment shall be made within 60 days
after the Date of Termination.
(iii) For the period of time after the Date of Termination on which the
Severance Payment is determined in accordance with paragraph (ii)
above, Executive shall be entitled to continue participation in the
life, disability, accident and health insurance benefit plans of
Xxxxxxxx substantially similar to those which the Executive is
receiving or entitled to receive immediately prior to the Notice
of Termination. Xxxxxxxx and Executive shall share the cost
associated with such coverage as if Executive were still actively
employed by Xxxxxxxx. If Executive cannot be covered under any of
Xxxxxxxx'x group plans or policies, Xxxxxxxx shall reimburse
Executive for his full cost of obtaining comparable alternative
group or individual coverage elsewhere, less any contribution that
Executive would have been required to make under Xxxxxxxx'x group
plans or policies. Benefits otherwise receivable by Executive
pursuant to this paragraph (iii) shall be reduced to the extent
comparable benefits are actually received by Executive during such
period, and any such benefits actually received by Executive shall
be reported to Xxxxxxxx.
(iv) The Severance Payment shall be reduced by the value of benefits
actually provided in (iii) above and by the amount of any other
payment or the value of any benefit received or to be received by
Executive in connection with the termination of employment or
contingent upon a Change in Control of Xxxxxxxx (whether payable
pursuant to the terms of this Agreement, any other plan, agreement
or arrangement with Xxxxxxxx or an Affiliate) unless (1) Executive
shall have effectively waived receipt or enjoyment of such payment
or benefit prior to the date of payment of the Severance Payment,
(2) in the opinion of tax counsel selected by Xxxxxxxx and acceptable
to executive, such other payment or benefit does not constitute a
"parachute payment" within the meaning of section 280G(b)(2) of the
Code, or (3) in the opinion of such tax counsel, the Severance
Payment (in its full amount or as partially reduced, as the case
may be) plus all other payments or benefits which constitute
"parachute payments" within the meaning of section 280G(b)(2) of
the Code are reasonable compensation for services actually rendered,
within the meaning of section 290G(b)(4) of the Code, and such
payments are deductible by Xxxxxxxx. The value of any non-cash
benefit or any deferred cash payment shall be determined by Xxxxxxxx
in accordance with the principles of sections 280G(d)(3) and (4) of
the Code.
(v) If it is established pursuant to a final determination of a court
or an Internal Revenue Service proceeding that, notwithstanding
the good faith of Executive and Xxxxxxxx in applying the terms
of this Subsection 4(d), the aggregate "parachute payments" paid
to or for Executive's benefit are in an amount that would result
in any portion of such "parachute payments" not being deductible
by Xxxxxxxx or its Affiliates by reason of section 280G of the Code,
then Executive shall have an obligation to pay Xxxxxxxx upon demand
an amount equal to the sum of (1) the excess of the aggregate
"parachute payments" paid to or for the Executive's benefit over
the aggregate "parachute payments" that would have been paid to
or for the Executive's benefit without any portion of such
"parachute payments" not being deductible by reason of section
280G of the Code; and (2) interest on the amount set forth in
clause (1) of this sentence at the applicable Federal rate (as
defined in section 1274(d) of the Code) from the date of
Executive's receipt of such excess until the date of such payment.
(vi) The Severance Payment shall be in lieu of and offset the amount
of any payment to which the Executive may be entitled to in connection
with the termination of employment pursuant to the provisions of
Xxxxxxxx'x Xxxxxxxxx Pay Plan, Document No. HR04.14, as amended
from time to time, or any successor to such policy.
(e) Executive shall not be required to mitigate the amount of any
payment provided for in this Section 4 by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided
for in this Section 4 be reduced by any compensation earned by
Executive as the result of employment by another employer or by
retirement benefits after the Date of Termination, or otherwise
except as specifically provided in this Section 4.
(f) In addition to all other amounts payable to Executive under this
Section 4, Executive shall be entitled to receive all benefits
payable to the Executive under the Xxxxxxxx, Inc. Employee Savings
Plan and any other plan or agreement relating to retirement benefits
or otherwise generally applicable to executive employees.
5. Employee Agreement. Executive entered into an Employee Agreement
with Xxxxxxxx in May 1996. The Employee Agreement contains certain
provisions regarding confidentiality and assignment of inventions
and non-compete provisions. If there is an Unapproved Change in
Control and thereafter Executive's employment with Xxxxxxxx shall
be terminated (A) by Xxxxxxxx other than for Cause or Disability,
or (B) by Executive for Good Reason (other than under Section 3(d)
of this Agreement), then the Executive shall be released from his
non-compete obligations under Section IV.B of the Employee
Agreement. If there is an Approved Change in Control and
thereafter Executive's employment with Xxxxxxxx shall be terminated
(A) by Xxxxxxxx other than for Cause or Disability, or (B) by
Executive for Good Reason (other than under Section 3(d) of this
Agreement), then the Executive shall be released from his non-compete
obligations under Section IV.B of the Employee Agreement following
12 months from the Date of Termination. All other obligations of
Executive under the Employee Agreement shall continue. The
Severance Payment shall constitute an offset against payments to
which Executive may be entitled to in connection with the Employee
Agreement and acceptance of such Severance Payment shall constitute
a waiver of such payments required under the Employee Agreement but
only up to the amount of the Severance Payment.
6. Funding of Payments. In order to assure the performance by Xxxxxxxx
or its successor of its obligations under this Agreement, Xxxxxxxx
may deposit in trust an amount equal to the maximum payment that will
be due the Executive under the terms hereof. Under a written trust
instrument, the Trustee shall be instructed to pay to the Executive
(or the Executive's legal representative, as the case may be) the
amount to which the Executive shall be entitled under the terms
hereof, and the balance, if any, of the trust not so paid or
reserved for payment shall be repaid to Xxxxxxxx. If Xxxxxxxx
deposits funds in trust, any payment therefrom shall be made within
five days after the occurrence of any event giving rise to Xxxxxxxx'x
obligation to make such payment hereunder. If and to the extent
there are not amounts in trust sufficient to pay Executive under
this Agreement, Xxxxxxxx shall remain liable for any and all payments
due to Executive. In accordance with the terms of such trust, at all
times during the term of this Agreement Executive shall have no
rights, other than as an unsecured general creditor of Xxxxxxxx,
to any amounts held in trust and all trust assets shall be general
assets of Xxxxxxxx and subject to the claims of creditors of Xxxxxxxx.
7. Successors; Binding Agreement.
(a) Xxxxxxxx will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of Xxxxxxxx to expressly assume
and agree to perform this Agreement in the same manner and to the
same extent that Xxxxxxxx would be required to perform it if no
such succession had taken place. Failure of Xxxxxxxx to obtain
such assumption and agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and shall
entitle Executive to compensation from Xxxxxxxx in the same amount
and on the same terms as he would be entitled hereunder if he
terminated his employment for Good Reason following a Change in
Control, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be
deemed the Date of Termination.
(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, successors, heirs,
and designated beneficiaries. If executive should die while any
amount would still be payable to Executive hereunder if the Executive
had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement
to the Executive's designated beneficiaries, or, if there is no
such designated beneficiary, to the Executive's estate.
8. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or
mailed by United States registered or certified mail, return
receipt requested, postage pre-paid, addressed to the last known
residence address of the Executive or in the case of Xxxxxxxx, to
its principal office to the attention of each of the then directors
of Xxxxxxxx with a copy to its Secretary, or to such other address
as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall
be effective only upon receipt.
9. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge
is agreed to in writing and signed by the parties. No waiver by
either party thereto at anytime of any breach by the other party
to this Agreement of, or compliance with, any condition or provision
of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or similar time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Minnesota.
10. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceablity of
any other provision of this Agreement, which shall remain in full
force and effect.
11. Arbitration and Award of Attorneys' Fees.
(a) Any dispute arising between the parties relating to this Agreement
shall be resolved by binding arbitration held in the City of
Minneapolis pursuant to the Rules of the American Arbitration
Association, except as hereinafter expressly modified. If the
disputing and responding parties are unable to agree upon a
resolution within forty-five business days after the responding
party's receipt of written notice from the disputing party setting
forth the nature of the dispute, within the following ten business
days the disputing and responding parties shall select a mutually
acceptable single arbitrator to resolve the dispute or, if the
parties fail or are unable to do so, each shall within the following
ten business days select a single arbitrator, and the two so
selected shall select a third arbitrator within the following ten
business days. Such single arbitrator or, as the case may be, panel
of three arbitrators acting by majority decision, shall resolve the
dispute within sixty days after the date such arbitrator, or the
last of them so selected, is selected, or as soon thereafter as
practicable. If either party refuses or fails to select an
arbitrator within the time therefor, the other party may do so
on such refusing or failing party's behalf. The arbitrators
shall have no power to award any punitive or exemplary damages
but may construe or interpret but shall not ignore or vary the
terms of this Agreement and shall be bound by controlling law.
The parties acknowledge the Executive's failure to comply with
any confidentiality, non-solicit, and non-compete provisions of
any agreement to which the Executive is bound will cause immediate
and irreparable injury to Xxxxxxxx and that therefore the arbitrators,
or a court of competent jurisdiction if an arbitration panel cannot
be immediately convened, will be empowered to provide injunctive
relief, including temporary or preliminary relief, to restrain any
such failure to comply. The arbitration award or other resolution
may be entered as a judgment at the request of the prevailing party
by any court of competent jurisdiction in Minnesota or elsewhere.
(b) In the event Xxxxxxxx fails to pay Executive any amounts owing to
Executive under this Agreement or to provide Executive any benefits
to which Executive is ultimately determined, by settlement,
mediation, arbitration, or by any court or other decision making
body with jurisdiction, to be entitled to under this Agreement,
Xxxxxxxx shall pay the legal expenses (including reasonable attorneys'
fees, court costs and other out-of-pocket expenses), incurred by
Executive to enforce his rights under this Agreement and collect
or obtain such amounts or benefits.
12. Prior Agreement. This Agreement supersedes and replaces in its
entirety all prior agreements related to a change in control of
Xxxxxxxx, including the Employment Agreement between Xxxxxxxx
and Executive, except the provisions of Section 7 of the First
Amendment to Employment Agreement related to deferred compensation
shall remain in full force and effect and shall continue in effect
so long as Executive is employed by Xxxxxxxx, even if this Agreement
terminates in accordance with the provisions of Section 1.
XXXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
