EXECUTIVE RETIREMENT AGREEMENT
THIS EXECUTIVE RETIREMENT AGREEMENT (the "Agreement") is dated and
made effective as of January 19, 1999. The parties to the Agreement (the
"Parties" and each a "Party") are XXXXXXXXX TECHNOLOGIES CORPORATION, a
Delaware corporation (the "Company"), and XXXXXXX X. XXXXXXX, Chairman of
the Board and Chief Executive Officer of the Company ("Xx. Xxxxxxx").
A. Xx. Xxxxxxx has been employed by the Company and, previously, by
companies that the Company acquired, since November 1972. He has served as
the Company's Chief Executive Officer since May 1988, as a member of the
Company's Board of Directors since February 1989 and as Chairman of the
Board since January 1993. Xx. Xxxxxxx also served as President of the
Company from May 1988 until September 1997.
B. Xx. Xxxxxxx now desires to retire as an employee of the Company
and the Company is willing to accept Xx. Xxxxxxx'x retirement. His
retirement is to occur on and be effective as of January 19, 1999 (the
"Retirement Date"). As part of and in connection with his retirement, the
Company desires to provide Xx. Xxxxxxx with certain compensation and other
benefits, in addition to those to which he already is entitled, in
recognition of Xx. Xxxxxxx'x extensive service to the Company and the
financial growth and success experienced by the Company under Xx. Xxxxxxx'x
leadership.
IN ORDER to carry out and give effect to the matters recited in the
prior paragraphs of this Agreement, and in consideration of the mutual
promises and undertakings set forth below, the Parties, intending to be
legally bound, agree as follows:
1. Retirement
On the terms and subject to the conditions stated in this Agreement,
Xx. Xxxxxxx'x employment with the Company will terminate on the Retirement
Date. At that date, Xx. Xxxxxxx will cease to be the Chief Executive
Officer of the Company. While Xx. Xxxxxxx will continue to serve as a
member and Chairman of the Board of Directors of the Company, as provided in
this Agreement, he will then cease to be an officer of the Company.
2. Payments and Benefits
On his retirement, Xx. Xxxxxxx will receive the payments and benefits
described in this Section 2. These payments and benefits will be made
effective or commence, as the case may be, on the day following the
Retirement Date, except as expressly provided otherwise. Xx. Xxxxxxx'x
payments and benefits will be as follows:
2.1 Accrued Rights and Benefits
Xx. Xxxxxxx will be paid any and all salary, bonus, vacation, benefits
and other compensation earned or accrued through the Retirement Date.
Xx. Xxxxxxx will have and retain all rights and receive all benefits to
which he is otherwise entitled, including those identified and set forth in
succeeding provisions of this Section 2.
2.2 Incentive Compensation
Xx. Xxxxxxx was an appointee and member of the Company's Long-Term
Incentive Compensation Plan and its Corporate Management Incentive
Compensation Plan (individually and together, the "Incentive Plans")
throughout the Company's 1998 fiscal year. At the Retirement Date,
Xx. Xxxxxxx will have been an appointee and member of the Incentive Plans
for the first eighty days of the Company's 1999 fiscal year. Xx. Xxxxxxx
will be paid the entire annual amount of his award under each of the
Incentive Plans for the 1998 fiscal year and 80/365ths of the annual amount
of his award under each of the Incentive Plans for the 1999 fiscal year.
Payment for the 1998 fiscal year will be made prior to January 28, 1999, and
payment for the 1999 fiscal year will be made prior to March 1, 2000, in
each case in accordance with the Incentive Plans' provisions.
2.3 Stock Option Exercise Period
Xx. Xxxxxxx has unexercised, nonqualified options to acquire
181,000 shares (post-April 20, 1998 stock split) of the Company's common stock,
of which 114,250 were vested as of the Retirement Date, which options for stock
(the "Options") were granted pursuant to the Xxxxxxxxx Technologies
Corporation 1987 and 1997 Stock Option Plans (the "Stock Option Plans"). As
provided in the Stock Option Plans and subject to the xxxxxxx xxxxxxx rules,
all the Options vested at the Retirement Date may be exercised by
Xx. Xxxxxxx at any time or from time to time until the earlier of three
years after the Retirement Date or the expiration date of the Options.
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2.4 Retirement Plan Payments
Xx. Xxxxxxx is a participant and beneficiary under the Company's tax-
qualified defined benefit retirement plan (the "Qualified Plan"), covering
substantially all the Company's U.S. employees, and its Supplemental
Executive Retirement Plan (the "SERP"), covering certain of the Company's
executive officers. Xx. Xxxxxxx will receive benefits under the Qualified
Plan in accordance with its terms and his established benefits entitlement
(approximately $128,223 per year during his lifetime calculated on the basis
of the 50% Joint Survivor Spouse Option). The Company has agreed to
increase the benefits to Xx. Xxxxxxx under the SERP and provide him with
annual payments for his life and that of his wife having an annual benefit
of $318,154 during his lifetime, and following his death, 50% of such
amount, if his wife survives him, for the remainder of his wife's lifetime.
To effect this benefit, and in satisfaction of all obligations to
Xx. Xxxxxxx under the SERP:
(a) The Company, within 30 days of the Retirement Date, will deliver
to Xx. Xxxxxxx fully paid joint and survivor annuities for his life and the
life of his wife (the "Annuity") providing an annual after-tax payment of
$192,000 payable monthly to him during his remaining lifetime and, following
his death, 50% of such amount to his wife, if she survives him, for the
remainder of her lifetime, which equals $318,154 referred to above less tax
at the highest marginal rate of U.S. income tax currently in effect. The
Annuity will be purchased from two companies mutually and reasonably
acceptable to the Parties.
(b) The first of the monthly payments under the Annuity will be made
within 30 days of the Retirement Date. Succeeding monthly payments will be
made on the monthly anniversaries of this first payment.
(c) The Company will accompany its delivery of the Annuity with a
payment in an amount sufficient to fully reimburse Xx. Xxxxxxx for the
anticipated U.S. income tax cost to him (at the highest marginal rate of
U.S. income tax currently in effect) from receipt of the Annuity and this
reimbursement payment, consistent with Rev. Proc. 81-48, 1981-2 C. B. 623.
(d) The amounts due under the SERP provided in this Section 2.4 are
based upon Xx. Xxxxxxx'x compensation earned through October 31, 1998 and
are in full payment and satisfaction of amounts due under the SERP without
further adjustment.
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2.5 Service as Chairman of the Board
As set forth in Section 3, Xx. Xxxxxxx will continue to serve as
Chairman of the Board until the second anniversary of the Retirement Date.
As compensation for the additional effort required for his service in this
capacity, and as additional recognition for his years of service to the
Company, Xx. Xxxxxxx will be paid a single lump-sum payment of $500,000.
This sum will be in addition to Xx. Xxxxxxx'x compensation and expense
reimbursement in the normal and established course, commencing with the
Retirement Date, as one of the nonemployee members of the Company's Board of
Directors. Until the second anniversary of the Retirement Date, the Company
will also provide Xx. Xxxxxxx, without cost to him, with life, accidental
death and disability insurance coverage comparable to that provided to him
prior to his retirement.
2.6 Medical and Dental Benefits
Subject to the limits set forth below, Xx. Xxxxxxx and his wife will
be provided by the Company with lifetime medical and dental insurance
coverage without cost to either of them for premiums. The coverage, terms,
conditions and benefits will be substantially the same as the more favorable
of (a) those offered from time to time to senior executives of the Company
or (b) those available to Xx. Xxxxxxx and his wife immediately prior to the
Retirement Date. The maximum cumulative benefits payable to each of
Xx. Xxxxxxx and his wife shall be $100,000.
2.7 Estate Planning Benefits
Xx. Xxxxxxx and his wife will be eligible to receive, without cost to
either of them, lifetime estate planning and other financial planning
services comparable to those made available from time to time to the
Company's Chief Executive Officer, not to exceed a maximum of $15,000 per
year for such services.
2.8 Taxable Benefits
The benefits payable under this Agreement will be taxable to
Xx. Xxxxxxx and his wife to the extent required by law.
3. Board of Directors Service
Following the Retirement Date, Xx. Xxxxxxx will serve and continue to
serve as a nonofficer, nonemployee member of the Company's Board of
Directors, subject to the rights of the Company's stockholders to elect and
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remove Directors and Xx. Xxxxxxx'x right to resign. Xx. Xxxxxxx will
continue to serve as Chairman of the Board until the second anniversary of
the Retirement Date. The following provisions will apply with respect to
Xx. Xxxxxxx'x service:
3.1 Duties and Responsibilities
During his tenure as Chairman of the Board, Xx. Xxxxxxx will perform
the duties and carry out the responsibilities customary and usual for
persons occupying such a position. He will chair all meetings of the
Company's stockholders and Board of Directors at which he is present and be
an ex officio member of all committees of the Board of Directors.
Xx. Xxxxxxx will be eligible to chair one or more such committees.
Xx. Xxxxxxx and the Chief Executive Officer of the Company will meet and
confer on a regular basis at mutually convenient times concerning the
business and affairs of the Company. Xx. Xxxxxxx is to be kept fully
apprised of all matters relevant to the discharge of his duties and
responsibilities as Chairman and a member of the Board of Directors.
3.2 Support
So long as Xx. Xxxxxxx remains Chairman of the Board, he will be
provided with a senior executive private office at the Company's
headquarters, suitably equipped and furnished, together with secretarial and
administrative support. Thereafter, and continuing until the fifth
anniversary of the Retirement Date, Xx. Xxxxxxx will be provided with a
smaller private office, suitably equipped and furnished, together with
secretarial and administrative support. Until the second anniversary of the
Retirement Date, Xx. Xxxxxxx will be provided with an automobile comparable
to that currently used by him. All the support identified in the prior
three sentences will be provided without cost to Xx. Xxxxxxx, except only to
the extent that automobile costs must be borne by senior executives of the
Company pursuant to Internal Revenue Service requirements. In the event and
to the extent that Xx. Xxxxxxx agrees to perform, and incurs costs or
expenses in the course of performing, services for the Company requested or
authorized by the Board of Directors or the Company's Chief Executive
Officer, Xx. Xxxxxxx will be fully and promptly reimbursed for these costs
and expenses (including, if incurred, first-class airfare).
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3.3 Effect of Termination
In the event that Xx. Xxxxxxx voluntarily resigns as Chairman of the
Board prior to the second anniversary of the Retirement Date, unless done in
anticipation of or following a "change of control" of the Company (as
defined in the Termination Protection Agreement entered into by Xx. Xxxxxxx
and the Company as of December 3, 1990 and amended as of February 7, 1995),
he must reimburse the Company for any unearned portion of the $500,000
payment received by him under Section 2.5, determined by multiplying this
amount by a fraction, the numerator of which is the number of days from the
date of retirement as Chairman of the Board to the Retirement Date's second
anniversary and the denominator of which is 731. Subject only to the
preceding sentence, none of the payments, benefits, rights or provisions of
or for support set forth in Section 2 or this Section 3 will be limited,
reduced, modified, terminated or otherwise affected in any respect on, or in
the event or by reason of Xx. Xxxxxxx'x resignation, removal or not being a
candidate or elected as, or otherwise ceasing to be a member or Chairman of
the Board of Directors, irrespective of the reason or cause.
4. Indemnification
4.1 Company Obligation
Except only in the circumstances described in Section 4.3, the Company
promises and agrees to indemnify and defend Xx. Xxxxxxx against, and hold
Xx. Xxxxxxx harmless from and in respect of, any and all expenses (including
attorneys' fees, disbursements and costs), judgments, fines, damages,
awards, penalties, assessments, contributions and amounts paid in settlement
directly or indirectly arising out of or relating to any action, suit or
proceeding, irrespective of whether threatened, pending or completed and
irrespective of whether civil, criminal, administrative or investigative in
nature, in which Xx. Xxxxxxx is a party, witness or other participant by
reasons of the fact that he was, is or may be serving (a) as an officer,
director, employee or agent of the Company or one or more of its
subsidiaries or other affiliates, or (b) at the request of the Company as an
officer, director, employee, trustee, manager or agent of another
corporation, partnership, joint venture, trust, limited liability company or
other enterprise (a "Proceeding"). The preceding indemnification
obligations and other requirements apply to and include a Proceeding by or
in the right of the Company.
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4.2 Advancement of Expenses
Xx. Xxxxxxx'x expenses (including attorneys' fees, disbursements and
costs) must be paid or reimbursed promptly as incurred and in advance of any
final disposition of any Proceeding. If requested by the Company,
Xx. Xxxxxxx will give the Company his unsecured undertaking to repay these
expenses should he be found pursuant to Section 4.3 not to be entitled to
indemnification.
4.3 Wrongful Conduct
The Company will not be obligated to indemnify and defend Xx. Xxxxxxx
with respect to a Proceeding as set forth in Section 4.1 in the event, but
only in the event, that (a) the Proceeding is terminated by a judgment
against, order or conviction of, or plea of nolo contendere or its
equivalent, by Xx. Xxxxxxx and (b) the court or other tribunal hearing the
Proceeding expressly finds that Xx. Xxxxxxx (i) did not act in good faith or
in a manner which he reasonably believed to have been in or not opposed to
the best interests of the Company or, in the case of a criminal proceeding,
had reasonable cause to believe his conduct was unlawful and (ii) in view of
all the circumstances, is not entitled to be indemnified by the Company.
4.4 Additional Rights
The provisions of this Section 4, if broader in scope, are in addition
to, and not in lieu of, other rights and remedies that are or may be
available to Xx. Xxxxxxx, whether under the Company's certificate of
incorporation or bylaws, by operation of law or otherwise. Section 4.1 is
intended to be construed and interpreted as broadly as possible to the
extent permitted under Section 145(f) of the Delaware General Corporation
Law.
5. Representations and Warranties
Each Party represents and warrants to the other Party that (a) this
Agreement has been duly executed and delivered by the representing Party,
(b) is the legal, valid and binding obligation of the representing Party,
enforceable against the representing Party in accordance with its terms, and
(c) the representing Party has the absolute and unrestricted right, power
and authority to execute and deliver this Agreement and perform such Party's
obligations under this Agreement. Without limiting the preceding
provisions, the Company specifically represents and warrants that any and
all corporate action required to approve this Agreement, including obtaining
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approval of its Board of Directors by vote of disinterested Directors, has
been taken and obtained.
6. General Release of Claims
Xx. Xxxxxxx and the Company hereby fully release and discharge each
other, and the Company's officers, directors, stockholders, employees,
agents and representatives from any and all debts, obligations, promises,
actions or claims that have arisen in any way out of Xx. Xxxxxxx'x
employment with the Company and the termination thereof. It is understood
that this release includes, but is not limited to, any claims for wages,
bonuses, employment benefits, damages of any kind whatsoever, arising out of
any contracts, express or implied, any covenant of good faith and fair
dealing, express or implied, any theory of wrongful discharge, any legal
restriction on the Company's right to terminate employees, or any federal,
state or other governmental statute or ordinance, including, without
limitation, Title VII of the Civil Rights Act of 1964, the federal Age
Discrimination in Employment Act, The Washington Law Against Discrimination
and any other legal limitation on the employment relationship. Xx. Xxxxxxx
represents that he has not filed any complaints, charges or lawsuits against
the Company with any governmental agency or any court and agrees that he
will not initiate, assist or encourage any such actions. This waiver and
release shall not waive or release claims where the events in dispute first
arise after execution of this Agreement, nor shall it preclude Xx. Xxxxxxx
or the Company from filing a lawsuit for the exclusive purpose of enforcing
their rights under this Agreement. Nothing is this paragraph nor in any
other paragraph of this Agreement shall constitute a release or waiver of
any claims or causes of action the Company has against Xx. Xxxxxxx or any
other person or entity with respect to any matter of thing arising out of or
in connection with Xx. Xxxxxxx'x purchase or sale of any securities of the
Company. Nothing in this Agreement shall be used for any purposes in
connection with any such claims or causes of action. Xx. Xxxxxxx'x release
of claims shall not affect any indemnification rights or obligations to
which he may be subject under Section 4 of this Agreement.
7. Review and Revocation Period
Xx. Xxxxxxx shall have 21 days to review this Agreement and consult
legal counsel if he so chooses, during which time the proposed terms of this
Agreement shall not be amended, modified or revoked by the Company.
Xx. Xxxxxxx may revoke this Agreement if he so chooses by providing notice
of his decision to revoke this Agreement to the Company within seven days
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following the date he signs this Agreement. This Agreement shall become
effective and enforceable on expiration of this seven-day revocation period.
8. Noncompetition, Nonsolicitation and Confidentiality
8.1 Scope of Competition
So long as Xx. Xxxxxxx serves as a director of the Company and for a
period of three years from the date on which he ceases to be a director of
the Company, Xx. Xxxxxxx agrees that he will not (except on behalf of or
with the prior written consent of the Company), directly or indirectly
(a) solicit, divert, appropriate to or accept on behalf of any Competing
Business (as hereinafter defined) or (b) attempt to solicit, divert,
appropriate to or accept on behalf of any Competing Business, any business
from any customer or actively sought prospective customer of the Company
with whom he has dealt, whose dealings with the Company have been supervised
by him or about whom he has acquired Confidential Information (as
hereinafter defined) in the course of his services for the Company. During
the same period, Xx. Xxxxxxx will not engage in, be employed by, perform
services for, participate in the ownership, management, control or operation
of, or otherwise be connected with, either directly or indirectly, any
Competing Business. For purposes of this Section 8, he will not be
considered to be connected with any Competing Business solely on account of
his ownership of less than 5% of the outstanding capital stock or equity
interests in any person carrying on the Competing Business. Xx. Xxxxxxx
agrees that this restriction is reasonable, but further agrees that, should
a court exercising a jurisdiction with respect to this Agreement find any
such restriction invalid or unenforceable due to unreasonableness, either in
period of time, geographical area, or otherwise, then in that event, such
restriction is to be interpreted and enforced to the maximum extent which
such court deems reasonable. "Competing Business" means any business whose
efforts are in competition with the efforts of the Company or any of its
subsidiaries or affiliates. A Competing Business includes any business
whose efforts involve any research and development, products or services in
competition with products or services which are, during or at the end of the
three year period specified above, either (a) produced, marketed or
otherwise commercially exploited by the Company or any of its subsidiaries
or affiliates or (b) related to actual or demonstrably anticipated research
or development by the Company or any of its subsidiaries or affiliates.
9
8.2 Scope of Nonsolicitation
So long as Xx. Xxxxxxx serves as a director of the Company and for a
period of three years from the date on which he ceases to be a director of
the Company, Xx. Xxxxxxx will not induce, or attempt to induce, any employee
or independent contractor of the Company or any of its subsidiaries or
affiliates to cease such employment or relationship to engage in, be
employed by, perform services for, participate in the ownership, management,
control or operation of, or otherwise be connected with, either directly or
indirectly, any Competing Business.
8.3 Confidential Information
Except as required for the performance of his services for the Company
or as authorized in writing by the Company, Xx. Xxxxxxx will not use,
disclose, publish or distribute any material Confidential Information. At
such time as Xx. Xxxxxxx ceases to be a director of the Company, Xx. Xxxxxxx
will return all material Confidential Information and all other documents,
data and other materials of whatever nature and shall not retain or cause or
allow any third party to retain photocopies or other reproductions of the
foregoing. "Confidential Information" means any information that
(a) relates to the business of the Company, (b) is not generally available
to the public, and (c) is conceived, compiled, developed, discovered or
received by, or made available to, Xx. Xxxxxxx, whether solely or jointly
with others, and whether or not while engaged in performing services for the
Company. Confidential Information includes information, both written and
oral, relating to inventions, trade secrets and other proprietary
information, technical data, products, services, finances, business plans,
marketing plans, legal affairs, suppliers, clients, prospects,
opportunities, contracts or assets of the Company or any of its subsidiaries
or affiliates. Confidential Information also includes any information which
has been made available to the Company or any of its subsidiaries or
affiliates by or with respect to third parties of which the Company or any
of its subsidiaries or affiliates is obligated to keep confidential.
8.4 Equitable Relief
Xx. Xxxxxxx acknowledges that the provisions of this Section 8 are
essential to the Company, that the Company would not enter into this
Agreement if it did not include this Section 8 and that damages sustained by
the Company as a result of a breach of this Section 8 cannot be adequately
remedied by damages, and Xx. Xxxxxxx agrees that the Company,
notwithstanding any other provision of this Agreement, and in addition to
any other remedy it may have under this Agreement or at law, shall be
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entitled to injunctive and other equitable relief to prevent or curtail any
breach of any provision of this Agreement, including, without limitation,
this Section 8.
9. General Provisions
9.1 Public Announcements
A public announcement concerning this Agreement or its terms and
conditions may be made by, and only by, the Company. The Company agrees to
consult with Xx. Xxxxxxx concerning the content of any such announcement.
9.2 Knowing and Voluntary Agreement
Xx. Xxxxxxx represents and agrees that he has read this Agreement,
understands its terms and the fact that it releases any claim he might have
against the Company and its agents, understands that he has the right to
consult counsel of choice and has either done so or knowingly waived the
right to do so, and enters into this Agreement without duress or coercion
from any source. Each Party will bear its own costs and expenses associated
with this Agreement.
9.3 Notices
All notices, consents, waivers and other formal communications under
this Agreement must be in writing. They will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt),
(b) sent by telecopier (with written confirmation of receipt), provided that
a copy is mailed by certified mail, return receipt requested, or (c)
received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate
addresses and telecopier numbers set forth below (or to such other addresses
and telecopier numbers as a Party may designate by notice to the other
Party):
If to the Company, to:
Xxxxxxxxx Technologies Corporation
Attn: Chief Executive Officer
00000 X.X. 0xx Xxxxxx
Xxxxxxxx, XX 00000
Fax: 000.000.0000
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with a copy to:
Xxxxxxx Coie LLP
Attn: J. Xxxx Xxxxxx
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Fax: 000.000.0000
And if to Xx. Xxxxxxx, to:
Xxxxxxx X. Xxxxxxx
X.X. Xxx 000
Xxxxxx Xxxxxx, XX 00000-0000
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with a copy to:
Xxxxxx Xxxxxx White & XxXxxxxxx
Attn: Xxxxx X. Xxx
000 Xxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, XX 00000-0000
Fax: 000.000.0000
9.4 Further Assurances
The Parties agree to (a) furnish on request to each other such further
information, (b) execute and deliver to each other such other documents and
(c) do such other acts and things, all as the other Party may reasonably
request for the purpose of carrying out the intent of this Agreement.
9.5 Waiver
The rights and remedies of the Parties are cumulative and not
alternative. Neither the failure nor any delay by either Party in
exercising any right, power or privilege under this Agreement will operate
as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any
other right, power or privilege.
9.6 Entire Agreement; Modification
This Agreement supersedes all prior agreements between the Parties
with respect to its subject matter and constitutes a complete and exclusive
statement of the terms of agreement between the Parties with respect to its
subject matter. This Agreement may not be amended except by a written
agreement executed by the Party to be charged with the amendment.
9.7 Successors and Third-Party Rights
This Agreement will apply to, be binding in all respects on and inure
to the benefit of the heirs, beneficiaries, successors and assigns of the
Parties. Nothing expressed or referred to in this Agreement will be
construed to give any person or entity other than the Parties any legal or
equitable right, remedy or claim under or with respect to this Agreement or
any provision of this Agreement. This Agreement and all its provisions and
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conditions are for the sole and exclusive benefit of the Parties and their
heirs, beneficiaries, successors and assigns.
9.8 Severability
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
9.9 Section Headings; Construction
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation.
All references to "Section" or "Sections" refer to the corresponding Section
or Sections of this Agreement. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. The
language of this Agreement has been negotiated and chosen by the Parties
jointly to express their mutual intent. No rule of construction based on
which Party drafted this Agreement or certain of its provisions will be
applied against either Party. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
9.10 Time of Essence
Time is of the essence with regard to all dates and time periods set
forth or referred to in this Agreement.
9.11 Counterparts
This Agreement may be executed in one or more counterparts and may be
delivered by manually signed counterpart or, if followed by a manually
signed counterpart, by facsimile. Each counterpart will be deemed to be an
original copy of this Agreement and all of which, when taken together, will
be deemed to constitute one and the same agreement.
9.12 Attorneys' Fees
If any action, suit or proceeding is instituted by a Party with
respect to this Agreement or its performance, the prevailing Party, in
addition to any other recovery or relief as may be awarded, will be entitled
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to its or his costs, expenses and reasonable attorneys' fees as determined
by a trial court, arbitrator or, in the event of an appeal, the appellate
court.
XXXXXXXXX TECHNOLOGIES
CORPORATION
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
By:_______________________________ ____________________________________
Xxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxx
Executive Vice President
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Glossary of Terms
Term Definition
---- ----------
Agreement Opening [Paragraph]
Annuity Section 2.4
Company Opening [Paragraph]
Competing Business Section 8.1
Confidential Information Section 8.3
Incentive Plans Section 2.2
Xx. Xxxxxxx Opening [Paragraph]
Options Section 2.3
Party and Parties Opening [Paragraph]
Proceeding Section 4.1
Qualified Plan Section 2.4
Retirement Date Recital [Paragraph] B
SERP Section 2.4
Stock Option Plans Section 2.3
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