CHANGE IN CONTROL AGREEMENT
This
Agreement (this “Agreement”), dated as of _________________, 2006 (the
“Effective Date”), is made by and between Buckeye Technologies Inc., having its
principal offices at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 (the
“Company”), and ________________ (the “Executive”).
WHEREAS,
the Company considers it essential to the best interests of its stockholders
to
xxxxxx the continued employment of key executive management personnel;
and
WHEREAS,
the Board of Directors of the Company (the “Board”) recognizes that the
possibility of a Change in Control (as defined in Section 1.4 below) of the
Company exists, and that such possibility, and the uncertainty, instability
and
questions that it may raise for and among key executive management personnel,
may result in the premature departure or significant distraction of such
management personnel to the material detriment of the Company and its
shareholders; and
WHEREAS,
the Board has determined that appropriate steps should be taken to reinforce,
focus and encourage the continued attention and dedication of key members of
the
executive management of the Company and its subsidiaries, including (without
limitation) the Executive, to their assigned duties without distraction in
the
face of potentially disturbing or unsettling circumstances arising from the
possibility of a Change in Control of the Company; and
WHEREAS,
the Board has determined that properly structured severance benefits are the
most efficient means to eliminate any such conflict in regards to the Executive;
NOW
THEREFORE, in consideration
of
the premises and the mutual covenants herein contained, the Company and the
Executive hereby agree as follows:
1. Definitions.
For
purposes of this Agreement, the following terms shall have the meanings set
forth below:
1.1. “Annual
Base Salary”
shall
mean the Executive’s rate of regular base annual compensation (prior to any
reduction under (i) a salary reduction agreement pursuant to section 401(k)
or
section 125 of the Internal Revenue Code of 1986, as amended from time to time
(the “Code”) or (ii) any plan or arrangement deferring any base salary or bonus
payments), and shall not include (without limitation) cost of living allowances,
fees, retainers, reimbursements, bonuses, incentive awards, prizes or similar
payments.
1.2. “Bonus”
shall
mean, with respect to any fiscal year of the Company, the sum of (i) any bonus
paid to the Executive under the Company’s broad-based profit sharing bonus plan;
and (ii) any bonus paid to the Executive under the Company’s At Risk
Compensation Program.
1.3. “Cause”
shall
mean (i) the Executive’s willful and continued failure to follow the
substantially lawful instructions of the Board or written Company policies,
(ii)
in carrying out his duties under this Agreement, the Executive engages in
willful gross misconduct or gross
negligence
resulting in material injury to the Company or any of its subsidiaries or
affiliates, or (iii) the Executive is convicted (including a plea of guilty
or
nolo
contendere)
of (a)
a felony or (b) any crime involving fraud or dishonesty, including any such
offense that relates to the Company’s assets or business or the theft of Company
property.
1.4. “Change
in Control”
shall
mean:
1.4.1. The
acquisition, after the Effective Date, by an individual, entity or group (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 the combined voting
power of the voting securities of the Company entitled to vote generally in
the
election of directors (the “Voting Securities”); provided, however, that the
following acquisitions shall not constitute a Change in Control: (a) any
acquisition, directly or indirectly, by or from the Company or any subsidiary
of
the Company, or by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any subsidiary of the Company, (b) any acquisition
by any underwriter in connection with any firm commitment underwriting of
securities to be issued by the Company, or (c) any acquisition by any
corporation if, immediately following such acquisition, more than 75% of the
then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
(entitled to vote generally in the election of directors), is beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who, immediately prior to such acquisition, were the beneficial
owners of the Common Stock and the Voting Securities in substantially the same
proportions, respectively, as their ownership, immediately prior to such
acquisition, of the Common Stock and Voting Securities; or
1.4.2. The
occurrence of a merger, reorganization or consolidation other than a merger,
reorganization or consolidation with respect to which all or substantially
all
of the individuals and entities who were the beneficial owners, immediately
prior to such merger, reorganization or consolidation, of the Common Stock
and
Voting Securities beneficially own, directly or indirectly, immediately after
such reorganization, merger or consolidation more than 75% of the then
outstanding common stock and voting securities (entitled to vote generally
in
the election of directors) of the corporation resulting from such
reorganization, merger or consolidation in substantially the same proportions
as
their respective ownership, immediately prior to such reorganization, merger
or
consolidation, of the Common Stock and the Voting Securities; or
1.4.3. The
occurrence of, (i) a complete liquidation or substantial dissolution of the
Company, or (ii) the sale or other disposition of all or substantially all
of
the assets of the Company, other than to a subsidiary, wholly-owned, directly
or
indirectly, by the Company; or
1.4.4. The
individuals who, as of the Effective Date, constitute the Board and any new
director (other than a director designated by a person or entity who has entered
into an agreement with the Company or other person or entity to effect a
transaction described in Sections 1.4.1, 1.4.2 or 1.4.3 above) whose election
by
the Board or nomination for election by the Company’s stockholders was approved
by a vote of a majority of the directors then still in office who either were
directors as of the Effective Date, or whose election or nomination for election
was previously so approved, cease for any reason to constitute a majority of
the
Board.
Notwithstanding
the above, a “Change in Control” shall not include any event, circumstance or
transaction which results from the action of any entity or group which includes,
is affiliated with or is wholly or partially controlled by one or more executive
officers of the Company and in which the Executive participates.
1.5. “Common
Stock”
shall
mean the common stock of the Company, par value $0.01.
1.6. “Disability”
shall
mean the Executive’s inability to render, for a period of six consecutive
months, services hereunder by reason of physical and mental disability, as
determined by the written medical opinion of an independent medical physician
mutually acceptable to the Executive and the Company. If the Executive and
the
Company cannot agree as to such an independent medical physician, each shall
appoint one medical physician and those two physicians shall appoint a third
physician who shall make such determination. In no event shall the Executive
be
considered disabled for the purposes of this Agreement unless the Executive
is
deemed disabled pursuant to the Company’s long-term disability plan, if one is
maintained by the Company.
1.7. “Employment
Period”
shall
mean the period commencing on the date of a Change in Control and ending upon
(and including) the earliest to occur of (i) the date which is two years from
the date of such Change in Control, or (ii) the date of the Executive’s
termination of employment for any reason.
1.8. “Good
Reason”
shall
mean and shall be deemed to exist if, without the prior express written consent
of the Executive, (i) the Executive suffers a material reduction in the duties,
responsibilities, reporting objectives or effective authority associated with
his title(s) and/or position(s), (ii) the Executive suffers a material change
in
his title(s) and/or position(s) as such title(s) and/or position(s) existed
on
the Effective Date, (iii) the Company fails to pay the Executive’s compensation
or to provide for the Executive’s benefits when due, (iv) the Company reduces
the Executive’s compensation, or the benefits under the Company’s employee
benefit plans or programs are in the aggregate materially reduced (excluding
reductions due to general benefit plan changes applicable to Company employees
generally), (v) the Executive’s primary office location is moved to a location
more than 50 miles from its location as of the Effective Date, (vi) the Company
fails to continue the incentive and deferred compensation plans (including,
without limitation, any plan under which a Bonus is payable), or programs or
the
health and welfare benefit plans or programs maintained by the Company as of
the
Effective Date for the benefit of senior executives, (vii) the Company fails
to
obtain assumption of this Agreement by an acquirer, [or] (viii) the Executive’s
employment is terminated for any reason if such purported termination is not
effected in accordance with the procedures outlined in Section 5 hereof[, or
(ix) the Executive’s employment is terminated for any reason during the 30-day
period commencing on the first anniversary of the occurrence of a Change in
Control]. For purposes of this Agreement, any action or inaction shall
constitute Good Reason only for the 90 day period from the date on which such
action or inaction first occurred.
1.9. “Person”
shall
have the meaning ascribed thereto in Section 3(a)(9) of the Exchange Act, as
modified, applied and used in Sections 13(d) and 14(d) thereof; provided,
however,
a
Person shall not include (i) the Company or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan
of
the Company or any of its subsidiaries (in its capacity as such), (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same character and proportions
as their ownership of stock of the Company.
2. Term
of this Agreement.
This
Agreement shall commence on the Effective Date and shall terminate on June
30,
2009; provided,
that
the term shall automatically be extended for an additional one year period
on
each July 1 after the Effective Date unless either party to this Agreement
delivers a notice of non-extension to the other party by December 31 of the
preceding year. However, if a Change in Control shall have occurred during
the
term of this Agreement, this Agreement shall continue in effect for a period
of
twenty-four (24) months beyond the date on which such Change in Control occurred
(the “Term”).
3. Time
and Attention. During
the Employment Period, and excluding any periods of vacation and sick leave
to
which the Executive is entitled, the Executive agrees to devote reasonable
attention and time to the business and affairs of the Company and to use the
Executive’s reasonable best efforts to perform faithfully and efficiently the
responsibilities and duties assigned to the Executive hereunder. During the
Employment Period it shall not be a violation of this Agreement for the
Executive to serve on corporate, civic or charitable boards or committees.
It is
expressly understood and agreed that to the extent that any such activities
have
been conducted by the Executive prior to a Change in Control, the reinstatement
or continued conduct of such activities (or the reinstatement or conduct of
activities similar in nature and scope thereto) subsequent to a Change in
Control shall not thereafter be deemed to interfere with the performance of
the
Executive’s responsibilities to the Company and its subsidiaries.
3.1. Restrictive
Covenants.
3.1.1. Non-Solicitation.
If
the
Executive’s employment is terminated by the Company for Cause or by the
Executive without Good Reason, the Executive, for a period of one year after
any
such termination, shall not (except on the Company’s behalf), directly or
indirectly, on his own behalf or on behalf of any other person, firm,
partnership, corporation or other entity, (i) solicit or service the business
of
any of the Company’s customers, any of the Company’s former customers which were
customers within six months prior to the termination of his employment or
any of the prospective customers which were being actively solicited by the
Company at the time of the termination of his employment or (ii) attempt to
cause or induce any employee of the Company to leave the Company.
3.1.2. Confidentiality.
The
Executive shall not, during the period of his employment with the Company,
or at
any time thereafter, without the prior express written consent of the Board,
directly or indirectly, divulge, disclose or make available or accessible any
Confidential Information (as defined below) to any person, firm, partnership,
corporation, trust or any other entity or third party (other than when required
to do so in good faith to perform the Executive’s duties and responsibilities
under this Agreement or when (i) required to do so by a lawful order of a court
of competent jurisdiction, any governmental authority or agency, or any
recognized subpoena power, or (ii) necessary to prosecute the Executive’s rights
against the Company or to defend himself against any allegations). In addition,
the Executive shall not create any derivative work or other product based on
or
resulting from any Confidential Information (except in the good faith
performance of his duties under this Agreement). The Executive shall also
proffer to the Board’s designee, no later than the effective date of any
termination of his employment with the Company for any reason, and without
retaining any copies, notes or excerpts thereof, all memoranda, computer disks
or other media, computer programs, diaries, notes, records, data, customer
lists, marketing plans and strategies, and any other documents consisting of
or
containing Confidential Information that are in the Executive’s actual or
constructive possession or which are subject to his control at such time. For
purposes of this Agreement, “Confidential Information” shall mean all
information respecting the business and activities of the Company, or any
affiliate of the Company, including, without limitation, the terms and
provisions of this Agreement, the customers, suppliers, employees, consultants,
computer or other files, projects, products, computer disks or other media,
computer hardware or computer software programs, marketing plans, financial
information, methodologies, know-how, processes, practices, approaches,
projections, forecasts, formats, systems, data gathering methods and/or
strategies of the Company. Notwithstanding the immediately preceding sentence,
Confidential Information shall not include any information that is, or becomes,
generally available to the public (unless such availability occurs as a result
of the Executive’s breach of any portion of this Section 3.1.2).
3.1.3. Non-Competition.
The
Executive acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its affiliates and accordingly agrees as
follows:
3.1.3.1. For
a
period ending on the expiration of one year following the Executive’s
termination of employment by the Company for Cause or the Executive’s voluntary
termination of employment without Good Reason, the Executive will not directly
or indirectly, (i) engage in any business for the Executive’s own account that
competes with the business of the Company, (ii) enter the employ of, or render
any services to, any person engaged in any business that competes with the
business of the Company, (iii) acquire a financial interest in, or otherwise
become actively involved with, any person engaged in any business that competes
with the business of the Company, directly or indirectly, as an individual,
partner, shareholder, officer, director, principal, agent, trustee or
consultant, or (iv) interfere with business relationships (whether formed before
or after the Effective Date) between the Company or any of its affiliates that
are engaged in a business similar to the business of the Company (the “Company
Affiliates”) and customers or suppliers of the Company or the Company
Affiliates.
3.1.3.2. Notwithstanding
anything to the contrary in this Agreement, the Executive may directly or
indirectly own, solely as an investment, securities of any person engaged in
the
business of the Company which are publicly traded on a national or regional
stock exchange or on the over-the-counter market if the Executive (i) is not
a
controlling person of, or a member of a group which controls, such person and
(ii) does not, directly or indirectly, own five percent (5%) or more of any
class of securities of such person.
3.1.4. Injunctive
Relief.
The
Executive acknowledges and agrees that the Company will have no adequate remedy
at law, and would be irreparably harmed, if the Executive breaches or threatens
to breach any of the provisions of this Section 3.1. The Executive agrees that
the Company shall be entitled to equitable and/or injunctive relief to prevent
any breach or threatened breach of this Section 3.1, and to specific performance
of each of the terms of such Section in addition to any other legal or equitable
remedies that the Company may have. The Executive further agrees that he shall
not, in any equity proceeding relating to the enforcement of the terms of this
Section 3.1, raise the defense that the Company has an adequate remedy at
law.
3.1.5. Special
Severability.
The
terms and provisions of this Section 3.1 are intended to be separate and
divisible provisions and if, for any reason, any one or more of them is held
to
be invalid or unenforceable, neither the validity nor the enforceability of
any
other provision of this Agreement shall thereby be affected. It is the intention
of the parties to this Agreement that the potential restrictions on the
Executive’s future employment imposed by this Section 3.1 be reasonable in both
duration and geographic scope and in all other respects. If for any reason
any
court of competent jurisdiction shall find any provisions of this Section 3.1
unreasonable in duration or geographic scope or otherwise, the Executive and
the
Company agree that the restrictions and prohibitions contained herein shall
be
effective to the fullest extent allowed under applicable law in such
jurisdiction.
4. Severance
Payments
4.1. Severance.
The
Company shall pay the Executive the payments and benefits described in Sections
4.1.1 through 4.1.3 (the “Severance Payments”) upon the termination of the
Executive’s employment with the Company following a Change in Control and during
the Employment Period, and upon execution of a general release in favor of
and
in form and substance satisfactory to the Company, unless such termination
is
(i) by the Company for Cause, (ii) by the Executive without Good Reason, (iii)
due to death, or (iv) due to Disability. In addition, the Executive’s employment
shall be deemed to have been terminated following a Change in Control by the
Company without Cause or by the Executive with Good Reason if (1) (a) the
Executive reasonably demonstrates that the Executive’s employment was terminated
without Cause prior to a Change in Control (I) at the request of a Person who
has entered into an agreement with the Company the consummation of which will
constitute a Change in Control (or who has taken other steps reasonably
calculated to effect a Change in Control) or (II) otherwise in connection with,
as a result of or in anticipation of a Change in Control, or (b) the Executive
terminates his employment for Good Reason prior to a Change in Control and
the
Executive reasonably demonstrates that the circumstance(s) or event(s) which
constitute such Good Reason occurred (I) at the request of such Person or (II)
otherwise in connection with, as a result of or in anticipation of a Change
in
Control, and (2) such Change in Control actually occurs. The Executive’s right
to terminate the Executive’s employment for Good Reason shall not be affected by
the Executive’s incapacity due to physical or mental illness. The Executive’s
continued employment shall not constitute consent to, or a waiver of rights
with
respect to, any act or failure to act constituting Good Reason hereunder. In
the
event of disability or death of the Executive after the Date of Termination
in
respect of any termination without Cause or any termination for Good Reason,
payments and benefits shall be made to the Executive, or the Executive’s
beneficiaries or legal representative, as the case may be.
4.1.1. A
lump
sum payment equal to [three][two] times the sum of (i) the highest Annual Base
Salary paid to the Executive in the three years preceding the Date of
Termination (as defined in Section 5.2 below) and (ii) the highest Bonus paid
to
the Executive in the three years preceding the Date of Termination. Unless
otherwise provided in this Agreement, such payment shall be made on or before
the 15th
day
following the Executive’s Date of Termination.
4.1.2. For
a
[three][two] year period after the Date of Termination, the Company shall
arrange to provide the Executive with health insurance benefits substantially
similar (and at the same cost) to those that the Executive is receiving
immediately prior to a Change in Control or, if earlier, the receipt of the
Notice of Termination (as defined in Section 5.1 below); provided,
however,
that
the continued coverage period hereunder shall be deemed to constitute a portion
of the Executive’s entitlement to COBRA benefits as a result of his termination
of employment. Benefits otherwise receivable by the Executive pursuant to this
Section 4.1.2 shall be reduced to the extent comparable benefits are actually
received by or made available to the Executive without cost during such period
following the Executive’s termination of employment (and any such benefits
actually received by the Executive shall be reported to the Company by the
Executive).
4.1.3. Immediate
vesting and/or exercisability of all outstanding equity based
awards.
4.2. Excise
Tax Limitation. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Company be
obligated to pay any compensation or provide any benefits under this Agreement
or otherwise if, and to the extent that, any such payments or benefits would
be
nondeductible for federal income tax purposes as a result of Section 280G of
the
Code (or any successor provisions thereto), or any regulation or rule
promulgated thereunder. All determinations to be made with respect to such
nondeductibility and this Section 4.2 generally shall be made by the Company
in
good faith based on the written advice of the Company’s regular independent
certified public accountants and/or regular outside legal counsel (and/or such
other professionals as the Company deems appropriate), and all such
determinations shall be final, conclusive and binding on the Company and the
Executive.
5. Termination
Procedures.
5.1. Notice
of Termination.
After a
Change in Control and during the Employment Period, any purported termination
of
the Executive’s employment with the Company (other than by reason of death)
shall be communicated by written Notice of Termination from one party hereto
to
the other party hereto in accordance with Section 7.5 hereof. 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 in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment with the Company
under the provision so indicated. Further, a Notice of Termination for Cause
is
required to include a copy of a resolution duly adopted by the affirmative
vote
of a simple majority of the entire membership of the Board at a meeting of
the
Board, which was called and held for the purpose of considering such termination
(which meeting may be a regular meeting of the Board where prior notice of
consideration of such termination is given to members of the Board) finding
that, in the good faith opinion of the Board, the Executive engaged in conduct
set forth in the definition of Cause herein, and specifying the particulars
thereof in detail. For purposes of this Agreement, any purported termination
not
effected in accordance with this Section 5.1 shall not be considered
effective.
5.2. Date
of Termination.“Date
of
Termination” with respect to any termination during the Employment Period, shall
mean (i) if the Executive’s employment is terminated for Disability, thirty (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
thirty (30) day period), and (ii) if the Executive’s employment is terminated
for any other reason, the date specified in the Notice of Termination, which
shall not be less than thirty (30) days after the Notice of Termination is
given
(except in the case of a termination by the Company for Cause).
6. Successors;
Binding Agreement.
6.1. Successors.
This
Agreement shall inure to the benefit of and be binding upon the Company and
its
respective successors and assigns. The Company shall require any successor
to
all or substantially all of its business and/or assets, whether direct or
indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner
and
to the same extent as the Company would be required to perform if no such
succession had taken place.
6.2. Binding
Agreement.
This
Agreement is personal to the Executive and, without the prior express written
consent of the Company, shall not be assignable by the Executive, except as
provided in this Section 6.2. If the Executive shall die while any amount would
still be payable to the Executive hereunder (other than amounts which, by their
terms, terminate upon the death of the Executive) 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 beneficiary (or
beneficiaries) designated by the Executive from time to time in accordance
with
the procedures for notice set out in Section 7.5; provided,
however,
that if
there shall be no effective designation of beneficiary by the Executive, such
amounts shall be paid to the executors, personal representatives or
administrators of the Executive’s estate. 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.
7. Miscellaneous.
7.1. Code
Section 409A Compliance. Notwithstanding
any other provision of this Agreement to the contrary, all payments hereunder
that are subject to the requirements of Section 409A of the Code shall be made
in compliance with Section 409A of the Code and the regulations issued
thereunder. Is specifically understood and agreed that the preceding sentence
may cause a six month delay in the distribution of affected payments.
Additionally, if the Executive is liable for any excise or other tax or addition
or interest imposed under Section 409A of the Code, the Company shall indemnify
the Executive against same (and any income tax liability attributable to any
such indemnification payment) and hold him harmless, as if Section 409A of
the
Code did not apply and shall place the Executive in the same after tax position
he would have enjoyed had said Section not applied to the
Executive.
7.2. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware. Both the Executive and the Company agree to appear before
and
submit exclusively to the jurisdiction of the state and federal courts located
within Memphis, Tennessee with respect to any controversy, dispute, or claim
arising out of or relating to this Agreement. The Executive agrees to be served
by the Company with judicial process via registered or certified mail. The
Executive further agrees that the General Counsel of the Company shall at all
times be the Executive’s agent for service of judicial process, and the
Executive hereby appoints the General Counsel of the Company as the Executive’s
agent for that and any other related purpose.
7.3. Amendments.
This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
7.4. Mutual
Intent.
Both
parties participated in the drafting of the Agreement, and the language used
in
this Agreement is the language chosen by the Executive and the Company to
express their mutual intent. Both the Executive and the Company agree that
in
the event that any language, section, clause, phrase or word used in the
Agreement is determined to be ambiguous, no presumption shall arise against
or
in favor of either party and that no rule of strict construction shall be
applied against either party with respect to such ambiguity.
7.5. Notices.
All
notices and other communications hereunder shall be in writing and shall be
given by hand-delivery to the other parties or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
To
the
Executive: [Name]
[Address]
To
the Company: Xxxxxx
Xxxxxx Xxxxxxxxxx
Senior
Vice President and General Counsel
0000
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
or
to
such other address as any party shall have furnished to the others in writing
in
accordance herewith. Notices and communications shall be effective when actually
received by the addressee.
7.6. No
Mitigation.
The
Executive shall not be required to mitigate the amount of any payment provided
for pursuant to this Agreement by seeking other employment and, to the extent
that the Executive obtains or undertakes other employment, the payment will
not
be reduced by the earnings of the Executive from the other
employment.
7.7. Legal
Fees and Other Expenses.
In
the
event that a claim for payment or benefits under this Agreement is disputed,
the
Executive shall be reimbursed for all reasonable attorney fees and expenses
incurred by the Executive in pursuing and/or defending any such claim, provided
that the Executive substantially prevails in respect of any material issue
which
is the subject of such claim by reason of litigation, arbitration or settlement.
7.8. Withholding.
The
Company may withhold from any amounts payable under this Agreement such federal,
state or local income taxes to the extent the same required to be withheld
pursuant to any applicable law or regulation.
7.9. Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
7.10. Captions.
The
captions of this Agreement are not part of the provisions hereof and shall
have
no force or effect.
7.11. Counterparts. This
Agreement may be executed in one or more counterparts each of which shall be
deemed an original instrument, but all of which together shall constitute but
one and the same Agreement.
7.12. Beneficiaries/References.
The
Executive shall be entitled to select (and change) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
the Executive’s death, and may change such election, in either case by giving
the Company written notice thereof. In the event of the Executive’s death or a
judicial determination of his incompetence, reference in this Agreement to
the
Executive shall be deemed, where appropriate, to refer to his beneficiary(ies),
estate or other legal representative(s).
7.13. Entire
Agreement.
This
Agreement contains the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, between
the
parties with respect thereto.
7.14. Representations.
The
Company represents and warrants that it is fully authorized and empowered to
enter into this Agreement.
7.15. Survivorship.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement for any reason and the expiration of the Term
to
the extent necessary to the intended provision of such rights and the intended
performance of such obligations.
7.16. Not
an Employment Contract.
Except
as expressly provided herein, this Agreement shall have no effect on the
Company’s right to terminate the Executive’s employment at any time and for any
reason.
IN
WITNESS WHEREOF,
the
Executive has hereunto set the Executive’s hand and the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
By:
[Executive
Name]
