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Exhibit 10(g)
A G R E E M E N T
between
THE XXXXXX CORPORATION
and
DATED: NOVEMBER 25, 1997
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AGREEMENT between THE XXXXXX CORPORATION (the "Company") and
(the "Executive"), dated November 25, 1997.
W I T N E S S E T H:
WHEREAS, the Executive is a principal officer of the Company or a
subsidiary;
WHEREAS, the Company wishes to encourage continuity of management in
the event of any actual or threatened change of control of the Company; and
WHEREAS, the Executive wishes to be assured of adequate compensation
if the Executive's employment by the Company or a subsidiary terminates because
of a change of control of the Company;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Operation of Agreement
1.01 This Agreement will be effective immediately but will be
operative only upon the occurrence of a Change of Control, as defined in Section
1.02, which takes place during the Protected Period (as defined in Section 1.04
below) and while the Executive is employed by the Company or a subsidiary.
1.02 A "Change of Control" will be deemed to occur when:
(i) the Company ceases to be required to file reports
under Section 13 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") or any successor to that Section; or
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(ii) any "person" (as defined in Sections 13(d) and
14(d) of the Exchange Act) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of either (a) 35% or more of the outstanding common
stock of the Company, or (b) 35% of the outstanding securities of
any other class or classes which individually or together have the
power (other than upon a failure to pay dividends, unless that
failure has occurred) to elect a majority of the members of the
Board of Directors of the Company, except that an acquisition of
securities by an employee benefit plan of the Company or a
subsidiary will never be a Change of Control; or
(iii) the Board of Directors of the Company determines
that a tender offer statement filed by any person with the
Securities and Exchange Commission indicates an intention on the
part of that person to acquire control of the Company; or
(iv) there is a change in the membership of the Board of
Directors of the Company and immediately following the change a
majority of the members of the Board of Directors of the Company are
not persons who (a) had been directors of the Company for at least
the preceding 24 consecutive months or (b) when they initially were
elected to the Board, (x) were nominated (if they were elected by
the stockholders) or elected (if they were elected by the directors)
with the affirmative vote of two-thirds of the directors who were
Continuing Directors at the time of the nomination or election by
the Board and
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(y) were not elected as a result of an actual or threatened
solicitation of proxies or consents by a person other than the Board
of Directors of the Company or an agreement intended to avoid or
settle such a proxy solicitation (the directors described in
clauses (a) and (b) being "Continuing Directors").
1.03 If there is a Change of Control of the type described in
Section 1.02 (iii), but the tender offer or exchange offer which is the subject
of the tender offer statement does not take place or is withdrawn without the
tendered shares being purchased, upon a determination by the Board of Directors
of the Company that this has occurred, the Change of Control described in
Section 1.02(iii) (but not any Change of Control of the type described in any
other subsection of Section 1.02), and all rights of the Executive to receive
payments under Section 2.01 or benefits under Section 2.02 upon a subsequent
Termination because of that Change of Control, will be rescinded. However,
rescission of a Change of Control of the type described in Section 1.02(iii)
will not affect the right of the Executive to receive the payments described in
Section 2.01 and the benefits described in Section 2.02 as a result of a
Termination which occurs between the time the Change of Control takes place and
the time it is rescinded.
1.04 For purposes of this Agreement, the "Protected Period" shall be
the three year period commencing November 25, 1997; provided, however, that the
Protected Period shall be automatically extended for one (1) year on November
25, 2000 and on each November 25 thereafter unless the Company
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shall have given written notice to the Executive at least ninety (90) days prior
thereto that the Protected Period shall not be so extended; and provided
further, however, that notwithstanding any such notice by the Company not to
extend, the Protected Period shall not end if prior to the expiration thereof
any person (as that term is defined below) has indicated an intention or taken
steps reasonably calculated to effect a Change in Control, in which event the
Protected Period shall end only after such person publicly announces that it has
abandoned all efforts to effect a Change in Control.
2. Payments
2.01 If there is a Termination, as defined in Section 2.04, with
regard to the Executive, the Company will pay to the Executive within 20 days
after the day on which the Termination occurs, in lieu of any salary (other than
salary for the pay period in which the Termination occurs and any unpaid salary
for prior pay periods), bonus, severance or similar payments, or damages, to
which the Executive might otherwise be entitled because of the termination under
any agreement with the Company or a subsidiary or any plan or program of the
Company or any subsidiary:
(i) A lump sum equal to (a) the Applicable Factor (defined below)
times the higher of the Executive's annual salary immediately before the Change
of Control and Executive's annual salary immediately before the Termination,
plus (b) the average of the bonus and similar payments made to the Executive
during each of the three full fiscal years of the Company immediately before the
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fiscal year during which the Termination occurs. For the purposes of this
Agreement, the "Applicable Factor" at any time will be the lesser of (x) 2.99 or
(y) the number of years (to the nearest one-hundredth of a year) between the
date of the Termination and the Executive's 65th birthday (but not less than one
full year).
(ii) A lump sum equal to (and in full satisfaction of the
obligations of the Company with regard to) any unpaid compensation which had
been deferred under any plan or program of the Company or a subsidiary or any
agreement between the Executive and the Company or a subsidiary, including all
accrued but unpaid interest or sums in lieu of interest as provided in the plan,
program or agreement to the date the lump sum is paid.
(iii) If, notwithstanding Section 2.03 of this Agreement, any stock
options or stock appreciation rights held by the Executive expire as a result of
the Termination without becoming exercisable, a lump sum equal to (x) the number
of shares as to which the stock options or stock appreciation rights expired
without becoming exercisable, times (y) (I) the last reported sale price on the
date of the Termination of a share of the Company's common stock (or the other
class of securities to which the stock options or stock appreciation rights
relate) in the principal market in which the common stock (or other class of
securities) is traded (which on the date of this agreement is the American Stock
Exchange with regard to the common stock) or if the common stock (or other class
of securities) is not publicly traded on the date of the Termination, the fair
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market value of a share of common stock (or of the other class of securities) of
the Company on that date (which, if the Change of Control involved a tender
offer or other payment for shares of common stock (or securities of the other
class), will not be less than the tender offer price or other per share
payment), minus (II) the per share exercise price of the stock option or stock
appreciation right.
2.02 After a Termination occurs, until the earlier of 2.99 years
after the date of the Termination and the Executive's 65th birthday, the
Executive will continue to be entitled to all employee welfare benefits
(including death benefits, disability benefits, and medical and dental benefits)
and indemnification rights, to which the Executive would have been entitled if
the Executive had continued to be employed by the Company or a subsidiary in the
position held by the Executive immediately before the Termination (but not less
than the employee welfare benefits to which the Executive would have been
entitled if the Executive had continued to be employed by the Company or a
subsidiary in the position held by the Executive immediately before the Change
of Control which resulted in the Termination).
2.03 At the time of a Change of Control, any stock options and stock
appreciation rights held by the Executive will immediately become exercisable in
full, notwithstanding any provisions of the stock options to the contrary
(except that no stock options or stock appreciation rights will become
exercisable earlier than the earliest date on which they could have been made
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exercisable in accordance with the plan under which they were issued). This
provision will be deemed incorporated in all stock options and stock
appreciation rights held by the Executive, whether granted before or after the
date of this Agreement.
2.04 There will be a "Termination" with regard to the Executive if
and when:
(a) the Company and its subsidiaries terminate the Executive's
employment within 18 months after a Change of Control other than because of (i)
the Executive's death or "total disability," as defined in the then most current
Xxxxxx Staff Handbook, or (ii) the Executive's conviction of, or plea of no
contest to, a felony or a crime involving moral turpitude or intended to result
in gain to or personal enrichment of the Executive at the Company's expense; or
(b) the Executive terminates the Executive's employment by the
Company and its subsidiaries within 18 months after a Change of Control for Good
Reason. "Good Reason" means the occurrence of any of the followingevents without
the prior express written consent of the Executive:
(i) A transfer of the Executive to a position which has a
lesser title or lesser responsibilities than those of the position
in which the Executive was employed immediately before the Change of
Control;
(ii) The assignment to the Executive of duties materially less
significant than those normally associated with the position held by
the Executive;
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(iii) A material adverse change in (A) the Executive's base
salary from that in effect immediately prior to the Change of
Control or (B) what the Executive must achieve to qualify for annual
bonuses at least as great as the average annual bonus the Executive
received during the three full fiscal years of the Company prior to
the fiscal year in which the Change of Control occurs;
(iv) The failure by the Company to provide to the Executive
(A) material perquisites, (B) vacation rights, (C) benefits
(including without limitation service credit for benefits) under
employee benefit and retirement plans, (D) indemnification for all
matters relating to his or her employment by the Company or any of
its affiliates, or (E) reimbursement for reasonable expenses
incurred by the Executive in the course of his or her duties; in
each case on a basis at least as favorable to the Executive as those
to which he or she was entitled immediately before the Change of
Control;
(v) The Company's requiring the Executive to locate his or her
office more than 100 miles distant from the location of his or her
office immediately prior to the Change of Control or requiring the
Executive to be absent from his or her office more than 100 working
days in any year, except in either case, to the extent consistent
with the Executive's office location changes and travel before the
Change of Control;
(vi) A breach by the Company of any employment agreement
between the Executive and the Company;
(vii) The liquidation or dissolution of the Company or the
transfer of a majority of its assets to a transferee which does not
become
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bound by this Agreement as contemplated by Section 5.04.
Notwithstanding the foregoing, no occurrence will constitute Good Reason unless
(a) at least 30 days before the termination of employment, the Executive
notifies the Company's Board of Directors of the conditions which the Executive
believes constitute Good Reason and states in the notice that unless those
conditions are cured the Executive will terminate his or her employment with the
Company or a subsidiary, but those conditions are not cured prior to the
termination of employment, and (b) the termination of employment occurs within
60 days after the Executive learns of the conditions which constitute Good
Reason. An election by the Executive to terminate the Executive's employment
under this Section 2.04(b) will not be deemed a voluntary termination by the
Executive for any purpose.
3. Certain Tax-Related Payments
3.01 If the Executive becomes subject to excise tax under Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"), because any
payment made or other thing done under this Agreement constitutes an "excess
parachute payment," as that term is defined in Section 4999 of the Code, the
Company will pay the Executive not later than 20 days after a demand made by the
Executive, cash equal to the amount necessary to reimburse the Executive for the
excise tax and for all additional Federal, state and local excise, income or
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other taxes which become due, or will become due, because of the payments under
this Section, assuming the Executive pays Federal, state and local income taxes
at the highest marginal rate applicable to individuals living and working where
the Executive lives and works. If there is a dispute between the Executive and
the Company regarding the amount the Company is required to pay under this
Section 3, that dispute will be resolved by the accounting firm which audited
the Company's financial statements immediately before the Change of Control or
another nationally recognized accounting firm mutually acceptable to the Company
and the Executive.
4. Letter of Credit
4.01 As promptly as practicable after (a) a Change of Control occurs
or (b) someone commences a solicitation of proxies or a tender offer which, if
successful, would result in a Change of Control, the Company will obtain a
letter of credit from a major national or New York State chartered bank which
will expire not earlier than 24 months after the Change of Control occurs and
which provides that the Executive may, by certifying (i) that a Termination with
respect to the Executive has occurred, and (ii) the amount due to the Executive
under Section 2, draw against the letter of credit the amount stated in the
certificate to be due to the Executive under Section 2. The agreement between
the Company and the bank which issues the letter of credit may specifically
state that the bank will have no responsibility for determining whether the
statements in the certificate from the Executive are correct. If the
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Executive draws under the letter of credit any sum which is not due to the
Executive under Section 2, promptly on demand from the Company, the Executive
will pay to the Company the sum which is not due to the Executive plus interest
on that sum at 10% per annum from the date the Executive draws the sum under the
letter of credit to the date the Executive pays the sum over to the Company.
5. General Provisions
5.01 This Agreement will not limit the right of the Company or the
Executive to terminate or alter the terms of the Executive's employment prior to
a Change of Control.
5.02 If the Executive brings suit to enforce any payment obligation
of the Company under this Agreement and a judgment is entered against the
Company, the Executive will be entitled to recover from the Company, (i) all
legal expenses incurred by the Executive in connection with the suit and (ii) an
amount equal to twice the amount which the Company would otherwise have been
required to pay to the Executive pursuant to Section 2.
5.03 If any provisions of this Agreement are determined to be
invalid, the remaining provisions will remain in full force and effect to the
fullest extent permitted by law.
5.04 This Agreement will be binding upon and inure to the benefit of
the Company and any successor of the Company, including any
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corporation which acquires (by merger, consolidation or otherwise) all or
substantially all the assets of the Company (which successor, after it acquires
all or substantially all the assets of the Company, will be the "Company" for
the purposes of this Agreement). This Agreement will be binding upon and inure
to the benefit of (and be enforceable by) the Executive and, after the Executive
dies or is determined not to be competent, the Executive's executors or other
legal representatives.
5.05 The Executive will be entitled to the payments specified in
Section 2 without regard to whether the Executive seeks or obtains other
employment after a Termination and without reduction for any compensation
received from other employment after the Termination.
5.06 Any notice or other communication under or relating to this
Agreement must be in writing and will be deemed given on the day on which it is
delivered in person or by overnight courier service or sent by facsimile
transmission to the Company at the general facsimile number at its principal
office or to the Executive at a facsimile number specified by the Executive
(with acknowledgment of receipt at the number to which sent), or on the third
business day after the day on which it is sent from within the United States of
America by first class mail, addressed (i) if to the Company or its Board of
Directors, at the principal offices of the Company, attention General Counsel
and (ii) if to the Executive, to the Executive's office or to the Executive's
home address as shown on the personnel records of the Company, or at such other
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address as is specified by the Executive to the Company after the date of this
Agreement in the manner provided in this Section.
5.07 This Agreement contains the entire agreement of the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings with respect to that subject matter, whether oral
or written. This Agreement may be amended only by a writing signed by the
Company, with approval of its Board of Directors, and the Executive.
5.08 The Company may withhold from payments it is required to make
under this Agreement and from other payments of compensation to the Executive
all sums, including taxes, which the Company determines it is required by law to
withhold because of payments made under this Agreement.
5.09 This Agreement will be governed by, and construed under, the
laws of the State of New York applicable to contracts made and to be performed
in that state.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year shown on the first page.
THE XXXXXX CORPORATION
By
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Chairman of the Board
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