EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of May 13, 2002 (this
"AGREEMENT"), is entered into by and between XXXX Industries, Inc., a Delaware
corporation (the "COMPANY"), and Xxxx X. Xxx (the "EXECUTIVE").
WHEREAS, the Executive has developed and possesses skills and
experience that are of value to the Company; and
WHEREAS, the Company desires to secure the services and employment of
the Executive on behalf of the Company and the Executive is willing to render
such services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT TERM. Subject to the terms and provisions of this
Agreement, the Company hereby agrees to employ the Executive, and the Executive
hereby agrees to be employed by the Company, for the period commencing on the
date of this Agreement and ending on the third anniversary of the date of this
Agreement, unless terminated sooner as hereinafter provided (the "EMPLOYMENT
TERM").
2. DUTIES. During the Employment Term the Executive shall serve as
Vice President, Chief Financial Officer and Secretary of the Company, and shall
perform such duties, services and responsibilities on behalf of the Company and
its subsidiaries as may be determined from time to time by the President and the
Board of Directors of the Company (the "Board") and shall have the authority
commensurate with such position. In performing his duties hereunder, the
Executive will report directly to the President. The Executive shall devote his
full business time, attention and skill to the performance of such duties,
services and responsibilities, and will use his best efforts to promote the
interests of the Company. The Executive may engage in any civic or charitable
activity or deliver lectures, fulfill speaking engagements or teach at
educational institutions, provided such activities do not materially interfere
with the performance of his duties hereunder.
3. COMPENSATION. In full consideration of the performance by the
Executive of the Executive's obligations during the Employment Term (including
any services by the Executive as an officer, director, employee or member of any
committee of any subsidiary or affiliate of the Company, or otherwise on behalf
of Company), the Executive shall be compensated as follows:
(a) BASE SALARY. The Executive shall receive a base salary
(the "BASE SALARY") at an annual rate of $158,500 per year, subject to review by
the Board
from time to time in the Board's sole discretion, PROVIDED, HOWEVER, that the
Board shall review the Base Salary on or prior to March 31st of each year during
the Employment Term. The Base Salary shall be payable in accordance with the
normal payroll practices of the Company then in effect.
(b) BONUS. During the Employment Term, and subject to review
by the Board from time to time in the Board's sole discretion, the Executive
shall be eligible to participate in the Company's annual incentive bonus plan,
if an annual incentive bonus plan is adopted. For the 2002 bonus plan year, the
Executive's bonus, if any, shall be prorated for his start date.
(c) BENEFITS. During the Employment Term, the Executive shall
be entitled to participate in any employee or executive benefit plans, policies
or programs that are provided generally to senior executives of the Company as
such plans, policies or programs may be in effect from time to time.
(d) VACATIONS. During the Employment Term, the Executive shall
be entitled to the number of paid vacation days in each calendar year determined
by the Company in accordance with the Company's policies in effect from time to
time.
(e) TAXES. The Executive shall be solely responsible for taxes
imposed on the Executive by reason of any compensation and benefits provided
under this Agreement and all such compensation and benefits shall be subject to
applicable withholding taxes.
4. TERMINATION. The Executive's employment with the Company
hereunder and the Employment Term shall terminate upon the occurrence of any of
the following events (the date of termination, the "TERMINATION DATE"):
(a) DEATH. The death of the Executive.
(b) DISABILITY. The termination of employment by the Company
for Disability upon thirty (30) days written notice to the Executive, provided
the Executive has not returned to work on a full-time, permanent basis prior to
the end of such thirty (30) day period.
(c) CAUSE. The termination of employment by the Company for
Cause. The Executive's termination for Cause shall be effective upon delivery of
written notice specifying the matter or matters the Company deems to constitute
Cause.
(d) WITHOUT CAUSE. The termination of employment by the
Company other than for Cause or Disability.
(e) GOOD REASON. The termination of employment by the
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Executive for Good Reason; provided, however that (i) the Executive must deliver
a notice of termination within sixty (60) days after the occurrence of the
event(s) constituting Good Reason, and (ii) the Company shall have (30) days
following the receipt of the Executive's notice of termination within which to
cure the event(s) identified by the Executive as constituting Good Reason and,
if so cured, Good Reason shall be deemed not to have occurred.
(f) EXPIRATION OF AGREEMENT. The third anniversary of the date
of this Agreement.
In the event of termination of the Executive's employment, for
whatever reason (other than death), the Executive agrees to cooperate with the
Company, its subsidiaries and affiliates and to be reasonably available to the
Company, its subsidiaries and affiliates with respect to continuing and/or
future matters arising out of the Executive's employment hereunder or any other
relationship with the Company, its subsidiaries and affiliates, whether such
matters are business-related, legal or otherwise.
5. TERMINATION PAYMENTS.
(a) DEATH OR DISABILITY. If the Executive's employment with
the Company is terminated by reason of the Executive's death, or by the Company
for Disability, the Company's sole obligation hereunder, shall be to pay the
Executive or his estate, as the case may be, the Accrued Compensation and the
Pro Rata Bonus Amount.
(b) BY COMPANY FOR CAUSE; BY EXECUTIVE WITHOUT GOOD REASON. If
the Executive's employment with the Company is terminated by the Company for
Cause or by the Executive without Good Reason, or the Executive's employment
hereunder terminates pursuant to SECTION 4(f) of this Agreement, the Company's
sole obligation hereunder shall be to pay the Executive the Accrued
Compensation.
(c) BY COMPANY WITHOUT CAUSE. If the Executive's employment
with the Company is terminated by the Company for any reason other than Cause or
Disability, the Company's sole obligation hereunder shall be to pay the
Executive the Accrued Compensation, the Pro Rata Bonus Amount and, so long as
the Executive is not in violation of the covenants contained in SECTION 6
hereof, to continue to pay the Executive the Base Salary (at the rate in effect
on the Termination Date) in accordance with the normal payroll practices of the
Company for twelve (12) months following the Termination Date. The obligation of
the Company to make payments to the Executive in accordance with this paragraph
5(c) shall survive the non-renewal, expiration or termination of this Agreement.
(d) GOOD REASON. If the Executive's employment with the
Company is terminated by the Executive for Good Reason, the Company's sole
obligation
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hereunder shall be to pay the Executive the Accrued Compensation, the Pro Rata
Bonus Amount and to continue to pay the Executive the Base Salary (at the rate
in effect on the Termination Date) in accordance with the normal payroll
practices of the Company, for twelve (12) months following the Termination Date.
(e) NO MITIGATION. In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement, nor shall such amounts be reduced by any earnings or benefits that
the Executive may receive from any other source.
(f) INTERNAL REVENUE CODE SECTION 280G. Notwithstanding
anything contained in this Agreement to the contrary, to the extent that any
payment or distribution of any type to or for the benefit of the Executive by
the Company, any affiliate of the Company, any person who acquires ownership or
effective control of the Company or ownership of a substantial portion of the
Company's assets (within the meaning of Section 280G of the Internal Revenue
Code (the "Code"), and the regulations thereunder), or any affiliate of such
person, whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise (the "Total Payments") is or will be
subject to the excise tax imposed under Section 4999 of the Code (the "Excise
Tax"), then the Total Payments shall be reduced (but not below zero) if and to
the extent that a reduction in the Total Payments would result in the Executive
retaining a larger amount, on an after-tax basis (taking into account federal,
state and local income taxes and the Excise Tax), than if the Employee received
the entire amount of such Total Payments. Unless the Executive shall have given
prior written notice specifying a different order to the Company to effectuate
the foregoing, the Company shall reduce or eliminate the Total Payments, by
first reducing or eliminating the portion of the Total Payments which are not
payable in cash (other than Total Payments attributable to stock options or
other equity awards ("EQUITY AWARDS")) and then by reducing or eliminating cash
payments, in each case in reverse order beginning with payments or benefits
which are to be paid the latest in time, and then by reducing Equity Awards in
the manner which will maximize the after-tax benefit to the Executive. Any
notice given by the Executive pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or agreement
governing the Executive's rights and entitlements to any benefits or
compensation. The determination of whether the Total Payments shall be reduced
pursuant to the foregoing and the amount of such reduction shall be made, at the
Company's expense, by an accounting firm selected by the Company which is one of
the five largest accounting firms in the United States (other than the Company's
regular independent auditor).
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(g) For purposes of this SECTION 5, the Executive's employment
shall not be treated as terminated for so long as he is an employee of the
Company or any of its subsidiaries.
6. EXECUTIVE COVENANTS.
(a) UNAUTHORIZED DISCLOSURE. The Executive agrees and
understands that in the Executive's position with the Company, the Executive has
been and will be exposed to and has and will receive information relating to the
confidential affairs of the Company, its subsidiaries and affiliates, including
but not limited to technical information, intellectual property, business and
marketing plans, strategies, customer information, other information concerning
the products, promotions, development, financing, expansion plans, business
policies and practices of the Company, its subsidiaries and affiliates, and
other forms of information considered by the Company to be confidential and in
the nature of trade secrets ("Confidential Information"). The Executive agrees
that during the Employment Term and thereafter, the Executive will not disclose
such Confidential Information, either directly or indirectly, to any third
person or entity without the prior written consent of the Company. This
confidentiality covenant has no temporal, geographical or territorial
restriction. Upon termination of the Employment Term, the Executive will
promptly supply to the Company all property, keys, notes, memoranda, writings,
lists, files, reports, customer lists, correspondence, tapes, disks, cards,
surveys, maps, logs, machines, technical data or any other tangible product or
document which has been produced by, received by or otherwise submitted to the
Executive during or prior to the Employment Term. Any material breach of the
terms of this paragraph shall be considered Cause.
(b) NON-COMPETITION. By and in consideration of the Company's
entering into this Agreement and the payments to be made and benefits to be
provided by the Company hereunder, and further in consideration of the
Executive's exposure to the proprietary information of the Company, the
Executive agrees that the Executive will not, during the Employment Term, and
thereafter during the "Non-competition Term" (as defined below), directly or
indirectly, own, manage, operate, join, control, be employed by, or participate
in the ownership, management, operation or control of, or be connected in any
manner with, including but not limited to holding any position as a shareholder,
director, officer, consultant, independent contractor, employee, partner, or
investor in, any "Restricted Enterprise" (as defined below); PROVIDED, that in
no event shall the ownership of less than 1% of the outstanding equity
securities of any issuer whose securities are registered under the Securities
and Exchange Act of 1934, as amended, standing alone, be prohibited by this
SECTION 6(b). For purposes of this SECTION 6(b), the term "RESTRICTED
ENTERPRISE" shall mean any person, corporation, partnership or other entity that
competes, directly or indirectly, with any business or activity conducted or
proposed to be conducted by the Company or any of its subsidiaries or affiliates
as of the date of the Executive's
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termination of employment. Following termination of the Employment Term, upon
request of the Company, the Executive shall notify the Company of the
Executive's then current employment status. For purposes of this Agreement, the
"NON-COMPETITION TERM" shall mean the period beginning on the Termination Date
and ending on the second anniversary of such date. Any material breach of the
terms of this SECTION 6(b) shall be considered Cause. Notwithstanding the
foregoing, in the event the Executive's employment with the Company is
terminated following a Change in Control by the Company without Cause or by the
Executive for Good Reason, the Executive shall not be subject to this SECTION
6(b), and this SECTION 6(b) shall have no force or effect.
(c) NON-SOLICITATION. During the Non-competition Term, the
Executive shall not, and shall not cause any other person to, interfere with or
harm, or attempt to interfere with or harm, the relationship of the Company, any
of its subsidiaries or affiliates with, or endeavor to entice away from the
Company, any of its subsidiaries or affiliates, or hire, any person who at any
time during the Employment Term was an employee or customer of the Company, or
any of its subsidiaries or affiliates. Notwithstanding the foregoing, in the
event the Executive's employment with the Company is terminated following a
Change in Control by the Company without Cause or by the Executive for Good
Reason, the Executive shall not be subject to this SECTION 6(c), and this
SECTION 6(c) shall have no force or effect.
(d) REMEDIES. The Executive agrees that any breach of the
terms of this SECTION 6 would result in irreparable injury and damage to the
Company, its subsidiaries and/or affiliates for which the Company, its
subsidiaries and/or affiliates would have no adequate remedy at law; the
Executive therefore also agrees that in the event of said breach or any threat
of breach, the Company, its subsidiaries and/or affiliates, as applicable, shall
be entitled to an immediate injunction and restraining order to prevent such
breach and/or threatened breach and/or continued breach by the Executive and/or
any and all persons and/or entities acting for and/or with the Executive,
without having to prove damages, in addition to any other remedies to which the
Company, its subsidiaries and/or affiliates may be entitled at law or in equity.
The terms of this SECTION 6(d) shall not prevent the Company, its subsidiaries
and/or affiliates from pursuing any other available remedies for any breach or
threatened breach hereof, including but not limited to the recovery of damages
from the Executive. The Executive and the Company further agree that the
provisions of the covenants contained in this SECTION 6 are reasonable and
necessary to protect the businesses of the Company, its subsidiaries and
affiliates because of the Executive's access to Confidential Information and his
material participation in the operation of such businesses. The Executive hereby
acknowledges that due to the global aspects of the Company's, its subsidiaries'
and affiliates' businesses and competitors it would not be appropriate to
include any geographic limitation on this SECTION 6. Should a court or
arbitrator determine, however, that any provision of the covenants contained in
this SECTION 6 are not reasonable or valid, either in period of time,
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geographical area, or otherwise, the parties hereto agree that such covenants
should be interpreted and enforced to the maximum extent which such court or
arbitrator deems reasonable or valid.
The existence of any claim or cause of action by the Executive against
the Company, its subsidiaries and/or affiliates, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants contained in this SECTION 6.
7. NON-WAIVER OF RIGHTS. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by any other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof, or the right of any party to enforce each and every provision
in accordance with its terms.
8. NOTICES. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery, by a reputable same-day or
overnight courier service (charges prepaid), by registered or certified mail,
postage prepaid, return receipt requested or by facsimile to the recipient with
a confirmation copy to follow the next day to be delivered by personal delivery
or by a reputable same-day or overnight courier service; to:
If to the Company: XXXX Industries, Inc.
0000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
If to the Executive: @ address last known to the Company
Either of the parties hereto may change their address for purposes of
notice by given notice in writing to such other party pursuant to this SECTION
8. The date of service of such notice shall be the date such notice is
personally delivered, three business days after the date of mailing if sent by
certified or registered mail, two business days after the date of delivery to
the courier if sent by courier, or the next business day after the date of
transmittal if by facsimile.
9. BINDING EFFECT/ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, personal representatives, estates, successors (including, without
limitation, by way of merger) and assigns. Notwithstanding the provisions of the
immediately preceding sentence, the Executive shall not assign all or any
portion of this Agreement without the prior written consent of the Company.
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10. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such
subject matter. This Agreement may not be amended, nor may any provision hereof
be modified or waived, except by an instrument in writing duly signed by the
party to be charged.
11. SEVERABILITY. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part, such
provision or application shall to that extent be severable and shall not affect
other provisions or applications of this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Illinois, without reference
to the principles of conflict of laws.
13. HEADINGS. The headings contained herein are solely for the
purposes of reference, are not part of this Agreement and shall not in any way
affect the meaning or interpretation of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
15. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
"ACCRUED COMPENSATION" shall mean any accrued and unpaid Base Salary
as of the Termination Date, all benefits accrued under any benefit plans,
programs or arrangements in which the Executive shall have been a participant as
of the date of such termination, in accordance with the applicable terms and
conditions of such plans, programs or arrangements, and an amount equal to such
reasonable and necessary business expenses incurred by the Executive in
connection with the Executive's employment on behalf of the Company on or prior
to the Termination Date but not previously paid to the Executive.
"CAUSE" shall mean: (i) the Executive's material breach of this
Agreement, (ii) conduct by the Executive that is fraudulent or unlawful, (iii)
gross negligence of or willful misconduct by the Executive in the performance of
his duties, or (iv) repeated failure of the Executive to perform his duties
hereunder.
"CHANGE IN CONTROL" shall mean the occurrence of any one of the
following events:
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(a) An acquisition (other than directly from the Company) of
any common stock, par value $.01 per share, of the Company ("Common Stock") or
other voting securities of the Company by any "Person" (as the term person is
used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of fifty percent (50%) or more of either (i) the then outstanding
Common Stock or (ii) the combined voting power of the Company's then outstanding
voting securities entitled to vote for the election of directors (the "Voting
Securities"); PROVIDED, HOWEVER, in determining whether a Change in Control has
occurred, Common Stock or Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an acquisition which
would cause a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (i) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Company or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity interest
is owned, directly or indirectly, by the Company (for purposes of this
definition, a "Related Entity"), (ii) the Company or any Related Entity, (iii)
any Person in connection with a "Non-Control Transaction" (as hereinafter
defined), or (iv) the UNR Asbestos-Disease Claims Trust;
(b) The individuals who, as of the date of this Agreement are
members of the Board (the "Incumbent Board"), cease for any reason to constitute
at least a majority of the members of the Board; PROVIDED, HOWEVER, that if the
election, or nomination for election by the Company's common stockholders, of
any new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered as
a member of the Incumbent Board; PROVIDED, FURTHER, HOWEVER, that no individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board (a "Proxy Contest"), including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or
into the Company or in which securities of the Company are issued (a "Merger"),
unless the Merger is a "Non-Control Transaction." A "Non-Control Transaction"
shall mean a Merger if:
(A) the stockholders of the Company immediately
before such Merger own directly or indirectly immediately following the Merger
at least fifty percent (50%) of the outstanding common stock and the combined
voting power of
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the outstanding voting securities of (x) the corporation resulting from such
Merger (the "Surviving Corporation"), if fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the Surviving
Corporation is not Beneficially Owned, directly or indirectly by another
corporation (a "Parent Corporation"), or (y) the Parent Corporation, if fifty
percent (50%) or more of the combined voting power of the Surviving
Corporation's then outstanding voting securities is Beneficially Owned, directly
or indirectly, by a Parent Corporation;
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for the Merger, constitute at least a majority of the members of the board of
directors of, (x) the Surviving Corporation, if fifty percent (50%) or more of
the combined voting power of the then outstanding voting securities of the
Surviving Corporation is not Beneficially Owned, directly or indirectly by a
Parent Corporation, or (y) the Parent Corporation, if fifty percent (50%) or
more of the combined voting power of the Surviving Corporation's then
outstanding voting securities is Beneficially Owned, directly or indirectly, by
a Parent Corporation; and
(C) no Person other than (1) the Company or
another corporation that is a party to the agreement of Merger, (2) any Related
Entity, or (3) any employee benefit plan (or any trust forming a part thereof)
that, immediately prior to the Merger, was maintained by the Company or any
Related Entity, or (4) any Person who, immediately prior to the Merger had
Beneficial Ownership of fifty percent (50%) or more of the then outstanding
Common Stock or Voting Securities, has Beneficial Ownership immediately
following the Merger, directly or indirectly, of fifty percent (50%) or more of
the combined voting power of the outstanding voting securities or common stock
of (x) the Surviving Corporation, if fifty percent (50%) or more of the combined
voting power of the then outstanding voting securities of the Surviving
Corporation is not Beneficially Owned, directly or indirectly by a Parent
Corporation, or (y) the Parent Corporation, if fifty percent (50%) or more of
the combined voting power of the Surviving Corporation's then outstanding voting
securities is Beneficially Owned, directly or indirectly, by a Parent
Corporation;
(ii) A complete liquidation or dissolution of the
Company; or
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Related Entity or under conditions that would constitute a
Non-Control Transaction with the disposition of assets being regarded as a
Merger for this purpose or the distribution to the Company's stockholders of the
stock of a Related Entity or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than
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the permitted amount of the then outstanding Common Stock or Voting Securities
as a result of the acquisition of Common Stock or Voting Securities by the
Company which, by reducing the number of Common Stock or Voting Securities then
outstanding, increases the proportional number of shares Beneficially Owned by
the Subject Persons, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Common Stock
or Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Common Stock or Voting Securities which increases the percentage of the then
outstanding Common Stock or Voting Securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
"DISABILITY" shall mean the inability of the Executive to perform his
duties, services and responsibilities hereunder by reason of a physical or
mental infirmity, as reasonably determined by the Board, for a total of 180
calendar days in any twelve-month period during the Employment Term.
"GOOD REASON" shall mean after a Change in Control, the occurrence of
any of the following events: (i) a material diminution in the Executive's
position, duties or responsibilities; (ii) a reduction in the Executive's Base
Salary; or (iii) a relocation of the Company's corporate headquarters to a
location that is more than 50 miles from the location of the corporate
headquarters immediately before the Change in Control.
"PRO RATA BONUS AMOUNT" shall mean an amount equal to the annual bonus
paid to the Executive for the year prior to the year in which the Executive's
employment is terminated, multiplied by a fraction, the numerator of which is
the number of days elapsed from the beginning of the bonus period through and
including the Termination Date, and the denominator of which is 365.
IN WITNESS WHEREOF, each of the Company has caused this Agreement to
be executed by authority of its Board of Directors, and the Executive has
hereunto set his hand, on the day and year first above written.
XXXX INDUSTRIES, INC. EXECUTIVE
By: /s/ Xxxxx X. Xxxxxxxxx /s/ Xxxx X. Xxx
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Name: Xxxxx X. Xxxxxxxxx Xxxx X. Xxx
Title: President & CEO
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