EXHIBIT 10.4
Severance Benefit Agreement
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Table of Contents
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Page
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1. Change in Control; Employment Agreement 1
1.1 Change in Control 1
1.2 Employment Agreement 2
2. Termination of Employment Following a Change in Control 3
2.1 General 3
2.2 Termination for Disability 3
2.3 Termination for Company for "Cause" 3
2.4 Termination by Executive for Good Reason 4
2.5 Notice of Termination 6
2.6 Date of Termination 7
2.7 Prior Notice Required of Company Actions 7
3. Benefits upon Termination of Employment 7
3.1 General 7
3.2 Base Salary Through Date of Termination; Previously
Earned Bonus 8
3.3 Pro-Rata Bonus for Year of Termination 8
3.4 Monthly Severance Payments 8
3.5 Fringe Benefits (General) 8
3.6 Retirement Plans 9
3.7 Stock Options 10
3.8 Purchase of Company Car 10
3.9 Job Search Assistance; Legal Fees; etc. 10
3.10 Repurchase of Company Shares Owned by Executive 11
3.11 Termination Which Does Not Require Payment of
Termination Benefits 11
4. New Employment; Reduction of Termination Benefits 11
5. Voluntary Termination of Employment By Executive 12
6. Termination of Employment Prior to Change in Control 13
7. Successor; Binding Agreement 13
8. Miscellaneous 14
8.1 Notice 14
8.2 No Waiver 14
8.3 Enforceability 14
8.4 Disputes 15
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8.5 Sections; Captions 15
8.6 Term of Agreement 15
8.7 No Right of Offset 15
8.8 Successive Changes in Control 15
8.9 Interpretation of Agreement 16
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EXHIBIT 10.4
SEVERANCE BENEFIT AGREEMENT
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This Severance Benefit Agreement (the "Agreement") is made as of May 9,
1984 by Xxxxxxx & Xxxxx, Incorporated, Xx. 0 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000 (the "Company") and Xxxxx X. Xxxxxxx, Xx. (the "Executive"), residing at
0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000.
RECITALS
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The Executive functions as President, Chairman of the Board and Chief
Executive Officer of the Company on the date hereof and is one of the key
employees of the Company.
The Company considers the maintenance of sound and vital management
essential to protecting and enhancing the best interests of the Company and its
shareholders. In this connection, the Company recognizes that in today's
business environment the possibility of a change in control of the Company may
exist in the future. The Company further recognizes that such possibility, and
the uncertainty which it may raise among key executives, could result in the
departure of distraction of key executives to the detriment of the Company and
its shareholders. Accordingly, the Board of Directors of the Company (the
"Board") has determined that appropriate steps should be taken (i) to further
induce the Executive to remain with the Company and (ii) to reinforce and
encourage the continued attention and dedication of the Executive to his
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company.
Now, Therefore, in consideration of the premises and for other good and
valuable considerations, receipt of which are hereby acknowledged, the Company
and the Executive do agree as follows:
1. Change in Control; Employment Agreement
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1.1 Change in Control
-----------------
The Company may be required to provide certain benefits to the
Executive under this Agreement following each and every "Change in Control" of
the Company.
A "Change in Control" of the Company shall be deemed to have
occurred if:
(a) There is any change in control as contemplated by (i)
Item 5(f) of Schedule 14A, Regulation 14A, promulgated under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or (ii) Item 1 of Form 8-K
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promulgated by the Securities and Exchange Commission under
the Exchange Act; or
(b) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of 25% or more of the combined
voting power of the Company's then outstanding voting
securities; or
(c) Those persons serving as directors of the Company on the
date of this Agreement (the "Original Directors") and/or
their Successors do not constitute a majority of the whole
Board of Directors of the Company (the term "Successors"
shall mean those directors whose election or nomination for
election by the Company's shareholders has been approved by
the vote of at least two-thirds of the Original Directors
and previously qualified Successors serving as directors of
the Company at the time of such election or nomination for
election); or
(d) The Company shall be a party to a merger or
consolidation with another corporation and as a result of
such merger or consolidation, less than 75% of the
outstanding voting securities of the surviving or resulting
corporation shall be owned in the aggregate by the former
shareholders of the Company as the same shall have existed
immediately prior to such merger or consolidation; or
(e) The Company liquidates, sells, or otherwise transfers
all or substantially all of its assets to a person not
controlled by the Company both immediately prior to and
immediately after such sale.
1.2 Employment Agreement
--------------------
Any benefits provided to the Executive under this Agreement will,
unless specifically stated otherwise in this Agreement be in addition to and not
in lieu of any benefits that may be provided the Executive under his employment
agreement with the Company dated May 9, 1979 (this agreement as previously,
herein or hereafter amended, restated or superseded is herein called the
"Employment Agreement").
Nothing in this Agreement is to be deemed to give the Company the
right to take any action or engage in any omission with respect to the Executive
(including Company Actions as defined in Section 2.4) at any time when any such
action or omission is not permissible and proper under the Employment Agreement
if then in force.
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Similarly, except as provided otherwise in this Agreement (e.g. Section 2.4 and
Section 5) nothing in this Agreement is to be deemed to give the Executive the
right to take any action or engage in any omission with respect to the Company
at any time when any such act or omission is not permissible and proper under
the Employment Agreement if then in force.
This Agreement shall continue for the term provided in Section 8.6 and
shall not be affected by any termination of the Employment Agreement.
2. Termination of Employment Following a Change in Control
-------------------------------------------------------
2.1 General
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During the 36 month period immediately following each and every
Change in Control (the "Protected Period"), the Executive and the Company shall
comply with all provisions of this Section 2 regarding termination of the
Executive's employment.
2.2 Termination for Disability
--------------------------
If the Employment Agreement is not in force, the Company may
terminate the Executive's employment for Disability. If the Employment Agreement
is in force, the Company may terminate the Executive's employment for disability
only in accordance with the terms of the Employment Agreement. "Disability" as
used in this Agreement as distinguished from the Employment Agreement shall mean
the Executive's absence from, and his inability to substantially perform, his
duties with the Company for a continuous period of six or more months as a
result of physical causes or mental illness. During any period prior to the
termination of his employment that the Executive is absent from, and is unable
to substantially perform, his duties with the Company as a result of physical
causes or mental illness, the Company shall continue to pay the Executive his
full base salary at the rate then in effect and any bonuses earned by the
Executive under Company bonus plans until such time as the Executive's
employment is terminated by the Company for Disability. Following termination of
employment under this Section, the Executive's benefits shall be determined in
accordance with the Company's long term disability program as in effect on the
date hereof, or any successor program then in effect.
2.3 Termination by Company for "Cause"
----------------------------------
If the Employment Agreement is not in force the Company may
terminate the Executive for Cause as defined in this Agreement. If the
Employment Agreement is in force the Company may terminate the Executive for
cause only in accordance with the terms of the Employment Agreement.
Termination for "Cause" under this Agreement as distinguished
from the Employment Agreement shall be limited to the following:
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(a) The Executive's conviction of any crime involving money or
other property of the Company or any of its subsidiaries or of
any other crime (whether or not involving the Company or any of
its subsidiaries) that constitutes a felony in the jurisdiction
involved; or
(b) The Executive's continued, repeated, willful violations of
specific written directions of the Board or the Company's chief
executive officer, which directions are consistent with this
Agreement and the Executive's duties and do not constitute
Company Action as defined in Section 2.4 and which violations
continue following the Executive's receipt of such written
directions; or
(c) The Executive's continued, repeated, willful failure to
perform his duties; provided, however, that no discharge shall be
deemed for Cause under this subsection (c) unless the Executive
first receives written notice from the Board or the Company's
chief executive officer advising the Executive of specific acts
or omissions alleged to constitute a failure to perform his
duties, and such failure continues after the Executive shall have
had a reasonable opportunity to correct the acts or omissions so
complained of.
No act or failure to act on the Executive's part shall be
considered "willful" unless done, or omitted to be done, by the Executive in bad
faith and without reasonable belief that his action or omission was in the best
interest of the Company. Moreover, the Executive should not be terminated for
Cause unless and until there shall have been delivered to the Executive a notice
of termination duly adopted by the affirmative vote of at least three-quarters
of the entire membership of the Board at a meeting of the Board called and held
for the purpose (after reasonable notice to the Executive and an opportunity for
the Executive, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Executive was guilty of the
conduct set forth in Section 2.3(a), (b) or (c) and specifying the particulars
thereof in detail.
A termination shall not be deemed for Cause if, for example, the
termination results from the Company's determination that the Executive's
position is redundant or unnecessary or that the Executive's performance is
unsatisfactory or if the termination stems from the Executive's refusal to agree
to or accept any Company Action described and defined in Section 2.4.
2.4 Termination by Executive for Good Reason
----------------------------------------
The Executive may, whether or not his Employment Agreement remains in
force, terminate his employment for "Good Reason" by giving notice of
termination to
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the Company following (i) any action or omission by the Company described in
this Section 2.4 or (ii) receipt of notice from the Company of the Company's
intention to take any such action or engage in any such omission. A termination
of employment under this Section 2.4 shall be deemed a valid and proper
termination of the Employment Agreement if then in force and to this extent the
parties agree that the Employment Agreement is hereby amended.
The actions or omissions which may lead to a termination of employment
for Good Reason (herein collectively and severally "Company Actions") are as
follows:
(a) A reduction by the Company in the Executive's base salary as in
effect on the date hereof or as the same may be increased from time to
time or a failure by the Company to increase the Executive's base
salary each year during the Protected Period by an amount which at
least equals, on a percentage basis, the average percentage increase
in base salary for all officers of the Company during the three full
calendar years immediately preceding the Change in Control; or
(b) A change in the Executive's reporting responsibilities, titles or
offices as in effect immediately prior to a Change in Control; or
(c) The assignment to the Executive of any positions, duties or
responsibilities inconsistent in the good faith opinion of the
Executive with the Executive's positions, duties and responsibilities
with the Company immediately prior to the Change in Control; or
(d) A failure by the Company (i) to continue any cash bonus or other
incentive plans substantially in the forms in effect immediately prior
to the Change in Control, or (ii) to continue the Executive as a
participant in such plans on at least the same basis as the Executive
participated in accordance with the plans immediately prior to the
Change in Control; or
(e) A requirement by the Company that the Executive be based or
perform his duties anywhere other than at the Company's Corporate
Office location immediately prior to the Change in Control, except for
required travel on the Company's business to an extent substantially
consistent with the Executive's business travel obligations
immediately prior to the Change in Control or, in the event the
Executive consents to any relocation, the failure by the Company to
pay (or reimburse the Executive for) all reasonable expenses incurred
by him relating to a change of his principal residence in connection
with such relocation and to indemnify the Executive against any loss
realized on the sale of his principal residence in connection with any
such change of residence (loss is defined as the difference between
the actual sale price of such residence and the higher of (i) the
aggregate investment in such residence (including improvements
thereto) or (ii) the fair market value of such as determined
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by a real estate appraiser designated by the Executive and reasonably
satisfactory to the Company); or
(f) A failure by the Company to continue in effect any benefit or
other compensation plan (e.g., stock ownership plan, stock purchase
plan, stock option plan, life insurance plan, health and accident plan
or disability plan) in which the Executive is participating at the
time of a Change in Control (or plans providing the Executive with
substantially similar benefits), the taking of any action by the
Company which would adversely affect the Executive's participation in
or materially reduce the Executive's benefits under any of such plans
or deprive the Executive of any material fringe benefit enjoyed by him
at the time of the Change in Control, or the Company's failure to
provide the Executive with the number of paid vacation days to which
he is entitled in accordance with the Company's normal vacation
practices with respect to the Executive at the time of the Change in
Control; or
(g) A failure by the Company to obtain the assumption agreement to
perform this Agreement by any successor as contemplated by Section 7
of this Agreement; or
(h) Any purported termination of the Executive's employment that is
not carried out (i) pursuant to a notice of termination which
satisfies the requirements of Section 2.5 or (ii) in accordance with
Section 2.3, if applicable; and for purposes of this Agreement, no
such purported termination shall be effective.
2.5 Notice of Termination
---------------------
Any purported termination by the Company of the Executive's employment
under Section 2.2 (Disability) or 2.3 (for Cause) or by the Executive under
Section 2.4 (for Good Reason) shall be communicated by notice of termination to
the other party. A notice of termination shall mean a notice which shall
include the specific termination Section in this Agreement relied upon and shall
set forth in reasonable detail, the facts and circumstances claimed to provide a
basis for termination of employment under the Section so indicated.
2.6 Date of Termination
-------------------
The date the Executive's employment is terminated under this Agreement
for Disability, for Cause or for Good Reason is called the "Date of
Termination". In cases of Disability, the date of termination shall be 30 days
after notice of termination is given (provided that the Executive shall not have
returned to the performance of his duties on a full-time basis during such 30
day period). If the Executive's employment is terminated for Cause, the Date of
Termination shall be the date specified in the notice of
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termination. If the Executive's employment is terminated for Good Reason, the
Date of Termination shall be the date set out in the notice of termination.
Any dispute by a party hereto regarding a notice of termination
delivered to such party must be conveyed to the other party within 30 days after
the notice of termination is given. If the particulars of the dispute are not
conveyed within the 30 day period, then the disputing party's claims regarding
the termination shall be forever deemed waived.
2.7 Prior Notice Required of Company Actions
----------------------------------------
During the Protected Period, the Company shall not terminate the
Executive's employment (except for Disability or for Cause or pursuant to the
Employment Agreement) or take any Company Action as defined in Section 2.4
without first giving the Executive at least three months' prior notice of
termination or the planned Company Action, as the case may be.
3. Benefits upon Termination of Employment
---------------------------------------
3.1 General
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If, during the Protected Period following each Change in Control, the
Executive's employment is terminated either (i) by the Company (other than for
Disability or Cause under this Agreement and other than for disability or cause
under the Employment Agreement) or (ii) by the Executive for Good Reason, then
the Executive, at his election, shall be entitled to the benefits provided in
this Section 3 (collectively and severally "Termination Benefits"). If the
Executive elects to receive Termination Benefits under this Agreement then he
shall automatically forfeit his option under Section 9 of the Employment
Agreement to render consulting services to the Company on the terms and
conditions set out in the Employment Agreement. This forfeiture shall not in
any manner affect the option of the Company under Section 9 of the Employment
Agreement to obtain the consulting services of the Executive.
3.2 Base Salary Through Date of Termination; Previously Earned Bonus
----------------------------------------------------------------
The Company shall promptly pay the Executive his full base salary
through the Date of Termination at the rate in effect at the time notice of
termination is given. In addition, the Company shall promptly pay the amount of
any bonus for a past period which has been earned by the Executive but not yet
paid under the applicable bonus plan. The Company shall give the Executive
credit for any vacation earned but not taken.
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3.3 Pro-Rata Bonus for Year of Termination
--------------------------------------
The Company shall pay the Executive a pro-rata bonus for the year in
which his employment terminates. The pro-rata bonus shall be equal to "A"
divided by "B" with the quotient multiplied by "C" where:
(a) "A" equals the number of days the Executive is employed by
the Company in the year in which the termination of employment
occurs (the "Termination Year");
(b) "B" equals 365; and
(c) "C" equals the maximum bonus the Executive would have been
eligible for in the Termination Year under Section 4.2 of his
Employment Agreement or under the Company's Executive and Key Man
Incentive Compensation Plan (or successor plans), whichever may
be applicable.
The pro-rata bonus shall be paid by the Company in a lump sum,
concurrently with the first severance pay installment provided for in Section
3.4.
3.4 Monthly Severance Payments
--------------------------
The Company shall pay the Executive the aggregate severance
payments equal to (i) 160% of the Executive's annual base salary as of the date
of the Change in Control or as of the Date of Termination, whichever is greater,
multiplied by (ii) three. The severance payments shall be made in 36 equal,
consecutive monthly installments, with the first installment to be on the first
day of the first month immediately following the Date of Termination. The 160%
figure in this Section shall be appropriately increased or decreased if and as
the Executive's maximum annual bonus potential (expressed as a percentage of his
annual base salary) is increased or decreased.
3.5 Fringe Benefits (General)
-------------------------
The Company shall maintain in full force, the continued benefit
of the Executive for three years after the Date of Termination, all employee
benefit plans, programs and/or arrangements (collectively and severally "Benefit
Plans") in which the Executive was entitled to participate immediately prior to
the Date of Termination provided the Executive's continued participation is
possible under the general terms and provisions of such Benefit Plans. If the
Executive's participation in any such Benefit Plan is barred, the Company shall
arrange to provide the Executive with benefits substantially similar to those
which the Executive is entitled to receive under such Plans. At the end of the
three year period of coverage, the Executive shall have the option to have
assigned to him at no cost and with no apportionment of prepaid premiums, any
assignable insurance policy owned by the Company and relating specifically to
the Executive.
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3.6 Retirement Plans
----------------
The Company shall pay the Executive in cash a lump sum additional
retirement benefit. Such benefit shall be paid at the Executive's normal
retirement age (or earlier retirement age should the Executive so elect) as
defined in the retirement programs in which the Executive participates or any
successor programs in effect on the date of any Change in Control. Such
additional benefit shall be equal to the actuarial equivalent of the additional
retirement benefit to which the Executive would have been entitled under such
retirement programs had he accumulated three additional years of continuous
service (following the Date of Termination) under such retirement programs both
for purposes of determining eligibility for benefits and for purposes of
calculating the amount of such benefits. If any retirement program requires
contributions by participants and the Executive is precluded by the terms of the
program from making such contributions following the Date of Termination, then
the amount of additional retirement benefit payable under this Section 3.6 shall
be equitably adjusted to reflect the absence of contributions by the Executive.
The Company shall pay the Executive in cash each month the result
obtained by subtracting "Y" from "X" where:
(a) "Y" is the monthly Pension Payment the Executive receives under
Section 6 of the Employment Agreement; and
(b) "X" is the monthly Pension Payment the Executive would have
received under Section 6 of the Employment Agreement had his
employment terminated three years later than it in fact
terminated
The benefits under this Section 3.6 are in addition to those the
Executive may be entitled to under the retirement programs in question. In
addition, the benefits provided under this Section 3.6 do not in any way limit
the benefits payable to the Executive under Section 3.5.
3.7 Stock Options
-------------
The Company shall at the request of the Executive accelerate and
make immediately exercisable in full all unexercised stock options which the
Executive then holds to acquire securities from the Company. This shall be done,
to the maximum extent possible, in a manner that will allow the Executive, upon
the exercise of any such options, to obtain favorable Federal Income Tax
treatment. The Executive's request may be made at any time during the period
beginning with the giving of the notice of termination and ending three months
after the Executive's employment terminates (the "Option Election Period").
Instead of exercising any or all outstanding stock options then
held by him, the Executive may elect during the Option Exercise Period to
surrender to the
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Company his rights in such outstanding stock options (whether or not then
exercisable). Upon such surrender, the Company shall pay to the Executive an
amount in cash per optioned share equal to the difference between (i) the option
price of such share and (ii) the higher of: (x) the closing price of the
Company's shares on the date of the Change in Control, (y) the closing price of
the Company's shares on the date the options (or in the case of Section 3.10,
the shares) are surrendered to the Company, or (z) the highest price per Company
share actually paid in connection with any Change in Control of the Company.
If, within six months of the taking of any Company Action under
Section 2.4, the Executive dies while still employed by the Company, the
Executive's estate shall be entitled, upon notice to the Company within 90 days
of the Executive's death, to be paid an amount equal to the amount the Executive
would have received had he surrendered all of his stock options under this
Section as of the date preceding his death. Such amount shall be paid in cash
by the Company within 45 days after receipt of the notice and the delivery of an
instrument surrendering all rights the Executive's estate may have held to the
stock options.
3.8. Purchase of Company Car
-----------------------
The Company shall permit the Executive during the Option Election
Period to purchase any Company automobile the Company was providing for the
Executive's use at the time notice of termination was given. The purchase price
shall be the book or wholesale value of such automobile at such time, whichever
is lower.
3.9 Job Search Assistance; Legal Fees; etc.
---------------------------------------
The Company shall reimburse the Executive for the costs of his
job search, including air fares, telephone conversations, advertisements,
executive placement or search fees and the like to the extent not reimbursed by
others. In addition, the Company shall provide the Executive with adequate
secretarial assistance and office space while the Executive's job search
continues. The Company shall promptly reimburse the Executive for all relocation
costs to the extent such reimbursement is not made by the Executive's new
employer. The Company's obligations under this first paragraph of Section 3.9
shall terminate three years from the Date of Termination.
The Company shall pay all relocation and indemnity payments as
set forth in Section 2.4(e), and all legal fees and expenses incurred by the
Executive as a result of the termination of his employment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination of employment or in seeking to obtain or enforce any right or
benefit provided by this Agreement).
3.10 Repurchase of Company Shares Owned by Executive
-----------------------------------------------
Upon request made during the Option Election Period, the Company
shall purchase all Company shares owned by the Executive immediately prior
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to the Date of Termination. Within 45 days after the request is made, the
Executive's shares properly endorsed and free of all claims shall be delivered
to the Company. Thereupon, the Company shall pay the purchase price in cash. The
purchase price shall be the highest price per share that can be computed under
Section 3.7.
3.11 Termination Which Does Not Require Payment of Termination
---------------------------------------------------------
Benefits
--------
No Termination Benefits need be provided by the Company to the
Executive under this Section 3 if the Executive's employment is terminated:
(a) By his death; or
(b) By the Executive for any reason other than for Good Reason
(e.g. by retirement); or
(c) By the Company for Disability or for Cause under this
Agreement or for disability or cause under the Employment
Agreement.
As used herein, retirement by the Executive means termination of
employment in accordance with the Company's normal retirement policy, including
early retirement, generally applicable to the Company's salaried employees or in
accordance with any special retirement arrangement jointly established by the
Company and the Executive and mutually agreeable to both.
4. New Employment; Reduction of Termination Benefits
-------------------------------------------------
The Termination Benefits provided under Section 3 shall not be treated
as damages, but rather shall be treated as severance compensation to which the
Executive is entitled. The Executive shall not be required to mitigate the
amount of any Termination Benefit provided under Section 3 by seeking other
employment or otherwise. If, however, following a termination of employment
which invokes Section 3, the Executive becomes employed full time by a third
party (as distinguished from becoming self-employed or being employed by an
employer controlled by the Executive and/or members of his immediate family),
then the amount of any cash compensation (including base salary and bonuses)
received by the Executive from such third party shall reduce on a dollar for
dollar basis, but not below zero, the amount of cash payments which the
Executive is thereafter entitled to receive under Section 3.4. In addition, any
fringe benefits that the Executive may receive from full time employment by a
third person (as distinguished from self-employment or employment by an employer
controlled by the Executive and/or members of his immediate family) shall be
applied against and reduce any fringe benefits thereafter to be made available
to the Executive under Section 3.5. In no event shall the Executive be
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required to return to the Company any Termination Benefits received by him prior
to his commencement of full time employment with a third person.
5. Voluntary Termination of Employment by Executive
------------------------------------------------
The Executive may voluntarily terminate his employment with the
Company for any reason (including retirement) within one year of any Change in
Control described in this Section. A termination of employment under this
Section 5 shall be deemed a valid and proper termination of the Employment
Agreement if then in force and to this extent the parties agree that the
Employment Agreement is hereby amended. Upon any such termination of employment
the Executive may in his sole discretion elect to receive, and the Company shall
provide, the following benefits and no others under this Agreement:
(a) The Company shall promptly pay the Executive those salary, bonus
and vacation payments provided for in Section 3.2, which section
is incorporated by reference in this Section 5.
(b) The Company shall promptly pay the Executive the pro-rata bonus
provided for in Section 3.3, which section is incorporated by
reference in this Section 5.
(c) The Company shall promptly pay the Executive a non-forfeitable
lump sum cash termination payment equal to 75% of the Executive's
total cash compensation for the calendar year immediately
preceding the Date of Termination of his employment.
(d) The Company shall provide the Executive for one year with those
fringe benefits described in Section 3.5, which section is
incorporated by reference in this Section 5. The fringe benefits
provided under this subsection (d) shall be reduced by any fringe
benefits the Executive thereafter receive from full time
employment by a third person (as distinguished from self-
employment).
If the Executive does not elect to receive benefits under this Section
5, then he shall remain eligible to receive Termination Benefits in accordance
with the provisions of Section 3.
The benefits payable to the Executive under this Section 5 are in
addition to all benefits provided to him under the Employment Agreement except
as provided in the next following sentence. If the Executive elects to receive
benefits under this Section 5 then he shall automatically forfeit his option
under Section 9 of the Employment Agreement to render consulting services to the
Company on the terms and conditions set out in the Employment Agreement. This
forfeiture shall not in any manner affect the option of the Company under
Section 9 of the Employment Agreement to obtain the consulting services of the
Executive.
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The only Change in Control that will permit an Executive to make an
election under this Section 5 is a Change in Control that is opposed by a
majority vote of the Board and in connection with such Change in Control or as a
result thereof:
(a) A majority of the whole Board becomes comprised of persons other
than Original Directors or their Successors (as those terms are
defined in Section 1(c)); or
(b) Any person (as defined in Section 1(b)) becomes the beneficial
owner (as defined in Section 1(b)); directly or indirectly of 50%
or more of the combined voting power of the Company's then
outstanding voting securities.
6. Termination of Employment Prior to Change in Control
----------------------------------------------------
Prior to a Change in Control and if there is no Employment Agreement
in force, the Executive shall not voluntarily terminate his employment with the
Company except upon at least three months' prior notice. Similarly, the Company
shall not terminate the Executive's employment other than for Cause except upon
at least three months' prior notice. If the Employment Agreement is in force,
termination of employment by the Executive or the Company shall be governed by
the terms thereof.
7. Successor; Binding Agreement
----------------------------
The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place (the assumption
shall be by agreement in form and substance satisfactory to the Executive).
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive, at his election, to Termination Benefits from the Company in the same
amount and on the same terms as the Executive would be entitled to hereunder if
he terminated his employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such election becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 7 or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of law.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, unless
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otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to his devisee, legatee or other designee or, if there be no such
designee, to his estate.
8. Miscellaneous
-------------
8.1 Notice
------
All notices, elections, waivers and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly give when delivered or mailed by United States certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth on the first page of this Agreement, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
8.2 No Waiver
---------
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing, signed by the Executive and an officer of the Company. No waiver by
either party at any time of any breach by the other party of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
8.3 Enforceability
--------------
The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
8.4 Disputes
--------
Notwithstanding the pendency of any dispute involving this
Agreement, the Company shall continue to pay all amounts and provide all
benefits which the Executive alleges are required by this Agreement
(collectively the "Disputed Benefits") until the dispute is finally resolved by
agreement, litigation or otherwise. If the dispute is resolved in the Company's
favor, then the person(s) resolving the dispute shall further determine (i)
whether the Executive initiated and continued the dispute in good faith and (ii)
whether there was a reasonable basis for the allegations made by the Executive.
If it is determined the Executive proceeded in good faith and with a reasonable
basis for his allegations, then the Executive shall not be required to reimburse
the Company for the Disputed Benefits received by him. Otherwise the Executive
shall be required (i) to fully reimburse the Company for the actual cost to the
Company of
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providing the Disputed Benefits and (ii) to pay the Company as liquidated
damages a lump sum cash payment equal to 20% of the Disputed Benefits.
8.5 Sections; Captions
------------------
All references in this Agreement to Section refer to the
applicable Sections of this Agreement. References in this Agreement to a given
Section (e.g. Section 3) shall, unless the context requires otherwise, refer to
all parts of such Section (e.g. 3.1 through 3.10).
The captions have been placed in this Agreement for ease of
reference only. They shall not be used in the interpretation of this Agreement.
8.6 Term of Agreement
-----------------
This Agreement shall continue in force so long as the Executive
remains employed by the Company or any successor and shall apply to any Change
in Control that occurs while the Executive remains so employed.
8.7 No Right of Offset
------------------
Effective upon the occurrence of a Change in Control, the Company
waives, and will not assert, any right to set off the amount of any claims,
liabilities, damages or losses the Company may have against any amounts payable
by the Company to the Executive whether under this Agreement or otherwise.
8.8 Successive Changes in Control
-----------------------------
A separate Change in Control shall be deemed to have occurred
with each occurrence of any event described at subsections (a) through (e) of
Section 1.1. This Agreement pertains to each and every Change in Control,
including successive Changes in Control involving the same controlling
persons(s).
8.9 Interpretation of Agreement
---------------------------
In the event of any ambiguity, vagueness or other matter
involving the interpretation or meaning of this Agreement, this Agreement shall
be liberally construed so as to provide to the Executive the full benefits set
out herein.
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IN WITNESS WHEREOF, this Agreement has been signed as of the day and
year first above written.
Attest: XXXXXXX & XXXXX, INCORPORATED
/s/ XXXXXX X. XXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------- --------------------------
Assistant Secretary Vice President
/s/ XXXXX X. XXXXXXX, XX.
--------------------------
Executive
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