EXHIBIT 10(q)
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, effective as of August 13, 2001 (the "Effective Date"),
is made between XXXXX X. XXXXXXX ("Employee") and THE XXXXXXX-XXXXXXXX COMPANY,
an Ohio corporation with its principal place of business in Cleveland, Ohio
("Employer").
WHEREAS, Employee previously has worked for Employer in an at-will
relationship, in a capacity as an Executive Officer of Employer, which
relationship the parties mutually have decided to terminate; and
WHEREAS, Employer desires to continue to employ Employee for the term
of this Agreement and Employee desires to accept such employment, all under the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the terms, conditions, premises,
and the mutual covenants set forth herein, the parties to this Agreement hereby
agree as follows:
i) SCOPE AND NATURE OF EMPLOYMENT ASSIGNMENT. Employer shall employ
Employee in the position or capacity of an employee on "Special Assignment,"
without specific assigned duties or employment obligations, but subject always
to the direction and control of Employer, its officers and authorized agents,
and Employee hereby accepts such assignment.
ii) TERM OF AGREEMENT. The Term of this Agreement shall be from August
13, 2001 to April 30, 2003, unless it is terminated sooner in accordance with,
and subject to, Section 12 herein.
iii) COMPENSATION.
(1) IN GENERAL. The term "Compensation" shall mean Employee's
"Base Pay" and "Bonus," as defined below.
(2) BASE PAY: For the duration of the term of this Agreement,
Employer shall pay to Employee, utilizing payroll practices consistent with
those applicable to other Top-5 Officers (as defined below) of Employer at the
time such payments are made, a bi-weekly salary of Fifteen Thousand Six Hundred
Twenty Four and 00/100 Dollars ($15,624.00), less applicable and usual tax and
other withholdings and employee contributions to benefit plans.
(3) BONUS: For calendar years 2001 and 2002, in the event a
bonus or other short-term incentive award payment is paid to other executives of
Employer who are identified as being among the top five officers of Employer in
its annual Proxy Statement as filed pursuant to the Securities Exchange Act of
1934 ("Top-5 Officers"), pursuant to the Xxxxxxx-Xxxxxxxx Management Incentive
Plan ("SWIMP"), or its successor plan or program, then Employer shall pay such a
bonus or other short-term incentive award payment to Employee, at a time and in
the manner in which such payment is made to such other Top-5 Officers of
Employer. With respect to calendar years 2001 and/or 2002, the amount of such
bonus or other short-term incentive, if paid or payable shall be on the basis
of:
Ninety percent (90%) of achievement (48% of Base Pay) in each
year; provided, however, if the average percent of achievement of such Top-5
Officers shall exceed ninety percent, Employer will pay him at the average
achievement level of such Top-5 Officers, not to exceed 100% of goal achievement
(60% of Base Pay).
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iv) STOCK OPTIONS:
(1) VESTING. All unvested stock options will continue to vest
through the term of this Agreement such that Employee's service under this
Agreement shall be deemed employment service under Employer's stock option plan.
In the event Employee elects to "Retire" under this Agreement (as defined in
Section 10 of this Agreement), all unvested options at such time shall become
fully vested. In the event of a Change of Control (as defined under Section 11
herein), all unvested options shall become fully vested.
(2) EXERCISE PERIOD. All stock options which are fully vested
as of August 13, 2001 shall be fully exercisable in accordance with their terms
during the term of this Agreement. Thereafter, such options shall be exercisable
in accordance with their terms, provided, however, that if Employee Retires
under this Agreement, he shall have: (a) a period of ten years from date of
original grant to exercise such options granted on or after February 4, 1998,
and (b) a period of three years from date of Retirement to exercise options
granted prior to February 4, 1998, but in no event later than the time such
options would otherwise expire by their terms. All stock options which vest
fully after September 1, 2001 shall be exercisable after becoming so vested,
throughout the term of this Agreement; provided, however, that if Employee
Retires upon termination of this Agreement, he shall have a period of ten years
from the date of grant to exercise such options.
(3) ISO STATUS. Incentive Stock Options shall retain their
status as such during the period of this Agreement. Such options, however, shall
be converted to nonqualified stock options if not exercised within ninety (90)
days of Employee's Retirement.
v) RESTRICTED STOCK. Management of the Employer shall recommend to The
Compensation and Management Development Committee of Employer's Board of
Directors to
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approve the early retirement of Employee as provided in this Agreement, pursuant
to Section 3(d) of the Restricted Stock Grants between Employer and Employee
dated February 7, 2001 and February 3, 1999 (the "Grants"), respectively, which
were made pursuant to The Xxxxxxx-Xxxxxxxx Company 1994 Stock Plan (the "1994
Stock Plan"). Such approval shall entitle Employee to continue his rights
thereunder in full (i.e., without proration of the number of shares granted
thereunder for the portion of the Restriction Period completed as of the date of
such Retirement), and, upon termination of this Agreement and Employee's
Retirement, Employee will be treated as if he had remained employed in a
Participating Position throughout the entire Restriction Period (as those terms
are defined under the 1994 Stock Plan).
vi) RETIREMENT PLANS. The following four plans identified below shall
be referred to collectively as the "Retirement Plans".
(1) SALARIED EMPLOYEES' REVISED PENSION INVESTMENT PLAN AND
PENSION INVESTMENT EQUALIZATION PLAN. Employee shall be entitled to Employer
contributions under these two plans, in accordance with their terms, based upon
the Compensation paid to him under this Agreement, during the term of this
Agreement. In the final calendar year of this Agreement, in the event Employee
Retires, he shall be eligible for Employer contributions under these plans even
if he is not employed by Employer on the last day of the plan year.
(2) EMPLOYEE STOCK PURCHASE AND SAVINGS PLAN AND DEFERRED
COMPENSATION SAVINGS PLAN. Employee shall be entitled to make salary deferral
contributions and to receive Employer matching contributions and Company Bonus
Contributions (as defined under these plans), in accordance with their terms,
based upon Compensation paid to him under this Agreement, during the term of
this Agreement.
vii) EMPLOYEE BENEFIT PLANS.
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(1) HEALTH, MEDICAL, DENTAL, AND VISION COVERAGES; MEDICAL
SPENDING ACCOUNTS. Employee shall continue to be eligible to participate in
Employer's health, medical, dental, vision and medical spending account
programs, on the same basis as any other Top-5 Officer of Employer, during the
term of this Agreement. Employee shall experience a "qualifying event" (as that
term is defined under the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA")) on the date this Agreement terminates, by reason of expiration of its
term or earlier termination in accordance with Paragraph 12 of this Agreement.
(2) RETIREE HEALTH CARE. Employee shall be eligible to elect
coverage under Employer's Retiree Medical Program, in the event of Employee's
Retirement upon termination of this Agreement. Notwithstanding the foregoing, in
the event Employee Retires, enrolls in the Retiree Health Care plan, and
suspends such election (for example, because he or his spouse becomes employed
with another employer which provides such similar coverage), he nevertheless
shall remain eligible to participate in the Retiree Medical Program at such
later date as he may designate.
(3) EXECUTIVE LIFE INSURANCE PLAN. Employer shall pay the
current annual premium under this program for Employee, as is necessary to
provide a pre-retirement death benefit under the plan equal to three times Base
Pay, until he reaches age sixty-two (62). At such time, Employer will roll out
or release to Employee an insurance policy that will provide paid up life
insurance coverage, for the life of Employee, in the face amount (i.e., with a
death benefit of) two times Final Salary (as defined under the Executive Life
Insurance Plan), or at Employee's option, a payout of the cash surrender value
at that time less the Company's investment in the premium from inception date of
the Plan.
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(4) DISABILITY COVERAGE. Employee waives coverage under the
Short-Term Disability Plan as of August 13, 2001. Coverage under Employer's
Executive Group Long-Term Disability Plan shall continue (fully paid by
Employer) through the date of Employee's Retirement (subject to Paragraph 12
herein). Thereafter, Employee may continue coverage pursuant to the terms of the
Plan.
(5) LIABILITY COVERAGES. Coverage under Employer's Umbrella
Liability, Business Travel Accident, Dependent Life and Voluntary Personal
Accident programs shall continue or be made available to Employee during the
term of this Agreement, on the same basis as made available to Top-5 Officers of
Employer, except that, if Employee Retires prior to the end of this Agreement
(but subject to Paragraph 12 herein), his continuation or conversion coverage
rights will be determined under the applicable plans.
(6) PERKS/FRINGES: Except as set forth below, Employee shall
be entitled to receive such perquisites and fringe benefits during the term of
this Agreement to which he was entitled while he was a Top-5 Officer of Employer
including, but not limited to, benefits under the General Executive Automobile
Policy (such as lease costs, taxes, vehicle title costs, insurance, maintenance,
repairs, and fuel), home security system monitoring, cellular telephone
expenses, reimbursement for dues at The Club at Key Center, reimbursement for
dues for professional associations of which Employee was a member on the
Effective Date, personal umbrella liability insurance reimbursement, or other
policies or programs of Employer. In addition, Employer shall forgive the
remaining indebtedness to it by Employee related to the unpaid portion of the
value of the vehicle in excess of Employee's entitlement under the General
Executive Automobile Policy, and shall transfer title of the vehicle to Employee
on or before Employee's Retirement hereunder, on a date as designated by
Employee.
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viii) PLAN PROCEDURAL MATTERS; FURTHER AMENDMENT OF PLANS.
(1) PROCEDURES. During the term of this Agreement, except as
otherwise specifically agreed in this Agreement. Employer will treat Employee as
an employee at will, provide to Employee, on a timely basis, all notices, forms,
Summary Plan Descriptions, Summaries of Material Modifications, and the like, as
are required by ERISA and other applicable laws to be furnished to participants
in the Retirement Plans and Employee Benefit Plans, as described in Sections 6
and 7 above, including such forms as may be requested by Employee to designate a
beneficiary to receive any payment hereunder in the event of the death of
Employee prior to termination of this Agreement.
(2) PLAN MODIFICATIONS. Nothing in this Agreement is to be
construed to prevent Employer from amending, modifying, terminating, or
suspending any plan, program, policy, procedure, or practice hereunder, provided
that such amendment, modification, termination or suspension is of general
application to all participants or employees covered thereunder and not of
unique or separate application to Employee; and provided further, hereunder,
that no such amendment, modification, termination, or suspension hereunder shall
deprive Employee of any right with respect to which he already is vested.
Notwithstanding the foregoing, it is expressly understood that any amendments or
modifications to, or replacement of, the Retirement Plans and Employee Benefit
Plans described in Sections 6 and 7 above, or the SWIMP described in Paragraph 3
above, which are of general application to employees of Employer (or to the
Top-5 Officers of Employer, as the case may be), similarly will apply to, or
inure to the benefit of, Employee during the term of this Agreement.
ix) OUTPLACEMENT ASSISTANCE. Employer shall pay for outplacement
assistance through Xxxxxxx, Xxxxxx & Xxxxx, Inc. until Employee secures
permanent, full-time employment.
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x) RETIRE OR RETIREMENT. Employee shall be deemed to have "Retired" or
elected "Retirement" under this Agreement, upon: (i) the termination of this
Agreement, (ii) notification of his intent to "Retire" to either the Vice
President of Human Resources or the Director of Compensation and Benefits of
Employer at least one business day prior to the proposed effective date of such
Retirement, and (iii) Employee's completion of such routine administrative forms
as may be designated by Employer for such purpose. It is understood that,
subject to this Agreement, once Employee Retires, stock options in Paragraph 4
and employee benefit plans in Paragraph 7 will be administered in accordance
with the terms of those plans.
xi) AMENDED AND RESTATED SEVERANCE PAY AGREEMENT. Employee and Employer
are parties to an Amended and Restated Severance Pay Agreement, effective as of
April 23, 1997 (the "CIC Agreement"). In the event there is a Change of Control
under the CIC Agreement prior to termination of this Agreement, Employee, if he
shall so elect, shall be entitled to all benefits under the CIC Agreement as if
he were a Top-5 Officer of Employer at such time; provided, however, that
Employee shall not be entitled to duplicate benefits under this Agreement and
the CIC Agreement and the provisions of the CIC Agreement providing benefits to
Employee shall be deemed to satisfy the like benefit obligations under this
Agreement.
xii) TERMINATION.
(1) IN GENERAL. This Agreement shall terminate only upon the
expiration of its Term, unless terminated sooner as set forth below; provided,
however, that certain obligations of the parties hereto shall survive
termination of the Agreement, as may be specified herein.
(2) INVOLUNTARILY, FOR "CAUSE" BY EMPLOYER. Employer hereby
specifically reserves the right to terminate the Term for Special Assignment
under Paragraph 2 and Compensation and employee benefits otherwise due in the
future under Paragraphs 3 through 9
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immediately "for cause"; provided, however, that such termination shall not
apply or cause a forfeiture of any benefits with respect to which Employee has a
vested interest or in contravention to his rights under ERISA with respect to
such plan or program. As used herein, the term "for cause" shall mean willful
misconduct or gross negligence causing demonstrable injury to the reputation of
the Employer and its affiliates, material breach of this Agreement, theft from
the Employer, or interference with the business operations of the Employer.
Notwithstanding the foregoing, before Employer can terminate
this Agreement "for cause," (a) Employee must be given thirty (30) days' advance
written notice of the act giving rise to the reason "for cause," and the
opportunity to cure (if it can be cured), and (b) Employer must obtain the
consent of the majority of its Board of Directors to invoke such termination;
and, provided further, that the term "interference with the business operations
of Employer" shall not be deemed to include Employee discharging his ordinary
duties as an employee of any subsequent employer.
(3) VOLUNTARILY, BY EMPLOYEE. Employee may terminate his
employment under this Agreement prior to the conclusion of the term of this
Agreement at any time upon reasonable notice to Employer. At such time, Employee
will be entitled to Retire hereunder.
(4) AUTOMATICALLY, BY EMPLOYEE COMMENCING REGULAR, FULL-TIME
EMPLOYMENT PRIOR TO TERMINATION OF AGREEMENT. In the event Employee commences
regular, full-time employment prior to April 30, 2003, (and not by reason of
termination of employment by Employer under Section 12b. above), this Agreement
shall terminate (subject to the survival provisions in Paragraph 23), and
Employer shall be obligated to make such payments and provide such coverages or
benefits as follows:
a. Compensation and Retirement Plans: Employer shall
pay to
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Employee the amounts of Compensation and Employer
contributions that otherwise would have been paid, accrued or
reserved with respect to, or contributed on behalf of Employee
had the Agreement not terminated prior to April 30, 2003.
b. Employee Benefit Plans: Health, Medical, Dental,
and Vision, coverage shall cease. Executive Life Insurance
coverage shall continue as set forth in Paragraph 7c. herein.
Disability Coverage, Liability Coverage, and Perks/Fringes,
all as set forth in Sections 7d. through 7f. shall cease.
However, Employer shall pay Employee the value of the employer
contributions that otherwise would have been paid, accrued or
reserved with respect to, or contributed on behalf of Employee
had the Agreement not terminated. For purposes of
Perks/Fringes, the value for each month of such benefits shall
be equal to the average of the amounts paid, accrued, or
reserved on behalf of Employee, or reimbursed to Employee
during the prior twelve (12) month period.
c. Stock Options, and Restricted Stock: Employee
shall be given the opportunity to Retire at the time of
termination of this Agreement. If he so elects, then he shall
be treated under Sections 4 and 5 of this Agreement as if he
retired at April 30, 2003.
xiii) CONFIDENTIAL INFORMATION. Employee agrees that in addition to any
other limitations to which he already is subject, regardless of the
circumstances of the termination of his at-will employment with Employer, he
will not communicate to any person, firm, or corporation any confidential
information relating to customer lists, prices, trade secrets, advertising, or
any other confidential knowledge which he has or might from time to time acquire
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with respect to the business of Employer or any of its affiliates or
subsidiaries. This provision shall not apply to information required to be
disclosed by law or by court order.
xiv) ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of Employer, Employee, and each of their respective successors, assigns,
personal and legal representatives, executors, administrators, heirs,
distributees, devisees, and legatees, as applicable; provided, however, that
neither this Agreement nor any rights or obligations hereunder will be
assignable or otherwise subject to hypothecation by Employee (except by will,
designation of a beneficiary to receive post-death payments hereunder, or by
operation of the laws of intestate succession) or by the Employer, except that
Employer may assign this Agreement to any successor (whether by merger, purchase
or otherwise) to all or substantially all of the stock, assets or businesses of
Employer, if such successor expressly agrees to assume the obligations of
Employer hereunder.
xv) ENTIRETY. This Agreement embodies the entire understanding and
agreement between the parties relative to the subject matter hereof.
xvi) CONTROLLING LAW. The interpretation and performance of this
Agreement shall be governed by the laws of the State of Ohio, to the extent not
otherwise preempted by the Employee Retirement Income Security Act of 1974
("ERISA").
xvii) FURTHER ASSISTANCE. Following the date of execution of this
Agreement, Employee agrees to make himself available for reasonable amounts of
time upon reasonable notice, at the request of Employer or its attorneys, with
respect to pending or threatened litigation or arbitration proceedings brought
by or against Employer or any of its affiliates.
Employee agrees that, for reasonable amounts of time, and upon
reasonable notice, he will consult with Employer or its attorneys regarding
threatened or pending litigation and/or
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arbitration proceedings and provide deposition testimony or testimony at
hearings or trial without the need for a subpoena. Employer agrees to reimburse
Employee for reasonable and documented travel costs and travel expenses in
connection with such consultation or testimony. Employer also agrees that in
connection with such testimony, Employee will be accompanied by an attorney
selected by and paid for by Employer. Such assistance by Employee shall not be
required to the extent it interferes with subsequent employment obligations of
Employee to any new, subsequent employer.
xviii) MUTUAL RELEASE. EMPLOYER, ON BEHALF OF ITSELF, ITS CURRENT OR
FORMER SUBSIDIARIES, THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS,
REPRESENTATIVES, INSURERS, SUCCESSORS AND ASSIGNS, AND EMPLOYEE, ON BEHALF OF
HIMSELF, HIS HEIRS, AGENTS, SUCCESSORS, ASSIGNS AND REPRESENTATIVES, HEREBY
MUTUALLY WAIVE, RELEASE AND DISCHARGE EACH OTHER; AND THE PERSONS AND
ORGANIZATIONS IDENTIFIED PREVIOUSLY IN THIS SENTENCE (COLLECTIVELY, "PERSONS"),
WITH RESPECT TO ANY AND ALL CAUSES OF ACTION, CLAIMS, LIABILITIES AND DEMANDS OF
ANY NATURE, WHETHER KNOWN OR UNKNOWN, RESULTING FROM OR BASED UPON, DIRECTLY OR
INDIRECTLY, EMPLOYEE'S EMPLOYMENT RELATIONSHIP WITH THE ABOVE DESCRIBED PARTIES
AND FOR EMPLOYEE INCLUDING, BUT NOT LIMITED TO, ANY ACTIONS, CLAIMS, LIABILITIES
OR DEMANDS CONCERNING, BASED UPON OR ARISING OUT OF ANY ALLEGED WRONGFUL
TERMINATION, BREACH OF EMPLOYMENT CONTRACT, BREACH OF THE IMPLIED COVENANT OF
GOOD FAITH AND FAIR DEALING, DEFAMATION, WORKERS' COMPENSATION, INTENTIONAL OR
NEGLIGENT
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INFLICTION OF EMOTIONAL DISTRESS, OR DISCRIMINATION BASED ON RACE, NATIONAL
ORIGIN, SEX, RELIGION, AGE OR HANDICAP, (INCLUDING, WITHOUT LIMITATION, CLAIMS
OR RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 AS AMENDED OR
SIMILAR STATE LAWS). THIS RELEASE DOES NOT COVER ANY RIGHTS EMPLOYEE MAY HAVE
UNDER THE PENSION INVESTMENT PLAN, THE EMPLOYEE STOCK PURCHASE AND SAVINGS PLAN,
THE DEFERRED COMPENSATION SAVINGS PLAN, AND THE PENSION INVESTMENT EQUALIZATION
PLAN, OR ANY OTHER PLAN COVERED BY ERISA, NOR DOES IT COVER ANY ACT, ACTIONS, OR
OMISSION BY ANY PERSON OCCURRING ON OR AFTER THE EFFECTIVE DATE, OR ANY BREACH
BY ANY PERSON OF THIS AGREEMENT.
xix) RIGHT TO ATTORNEY; OPPORTUNITY TO REVIEW. Employee represents and
agrees that: (i) he fully understands his right to have this Agreement reviewed
by and to discuss all aspects of this Agreement with his private attorney and
that to the extent, if any, he desires, he has availed himself to this right;
(ii) he has had a period of not less than 21 days within which to review and
consider this Agreement and has used as much of this 21 day period as he desired
prior to executing the same; and (iii) he is voluntarily entering into this
Agreement.
xx) NONDISCLOSURE. Employer and Employee agree that the terms and provisions of
this Agreement and all events leading thereto are to remain confidential and
shall not be discussed by either of them, after the date of execution of this
Agreement, with anyone other than his attorneys, tax and financial planning
advisors (and for Employee, immediate family members) or as otherwise required
by law. Employer specifically agrees that Employee may discuss the reasons his
employment with Employer terminated, provided that Employee does not disparage
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or malign Employer. Employee further agrees that if any unauthorized disclosures
are made, this Employment Agreement, if the Employer so elects, shall be null
and void and Employee, if the Employer elects, shall be liable to return the
monies paid hereunder to the Employer, it being understood, that Employer shall
act in good faith in exercising its rights hereunder including undertaking a
good faith investigation and shall give Employee prior notice of its intentions
hereunder. Employer agrees that the terms and provisions of this Agreement and
all events leading thereto are to remain confidential and shall not be discussed
by agents or employees of Employer with anyone other than its attorney, persons
necessary for purposes of implementing this Agreement, or as otherwise required
by law.
xxi) INDEMNIFICATION. Nothing in this Agreement shall terminate any
obligation of Employer to defend or indemnify Employee for any act, action, or
omission by Employee while he was acting in the course and scope of his
employment prior to the Effective Date or during the Term of this Agreement, as
may be evidenced by any indemnification agreement between the parties, by-laws
of Employer, or insurance carried by Employer for this purpose; it being
expressly understood that the indemnification protection afforded Employee prior
to the Effective Date is to continue after the Effective Date.
xxii) NO OTHER REPRESENTATIONS. The making, execution and delivery of
this Agreement have been induced by no representations, statements, warranties
or agreements other than those expressed or referred to herein.
xxiii) SURVIVAL. To the extent not otherwise inconsistent with any
other provision of this Agreement, the provisions of Paragraphs 4, 5, 7b., 7c.,
9, 12d., 13, 17, 18, 20, and 21 shall remain in full force and effect after
termination or expiration of this Agreement for any reason.
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xxiv) ENFORCEABILITY. This Agreement may be revoked by Employee during
the seven-day period immediately following the date he executes this Agreement.
xxv) ATTORNEYS' FEES. Employer shall pay the attorneys' fees of
Employee's attorney incurred in the consultation, negotiation, and preparation
of this Agreement.
xxvi) MUTUALLY ACCEPTABLE REFERENCE. Employer and Employee have agreed
upon a mutually acceptable reference and explanation for Employee's termination
of employment. Such reference and explanation is attached as Exhibit A hereto.
Employer and Employee agree to use Exhibit A to explain Employee's termination
of employment or as a reference when so requested, and no Person shall make
statements inconsistent with the reference and explanation in Exhibit A.
xxvii) APPROVALS AND CONSENTS. Employer will obtain such approvals and
consents as are necessary under relevant law or its by-laws to effectuate and
deliver, with proper authority, its commitments hereunder, including, without
limitation, the approval of The Compensation and Management Development
Committee of Employer's Board of Directors with respect to Management of the
Employer's recommendation concerning Restricted Stock as described in Paragraph
5 herein. In the event it fails to do so, Employee may rescind this Agreement,
including the Release herein, and shall not be obligated to repay or reimburse
Employee for any amounts paid hereunder.
You may revoke this agreement during the seven (7) day period
immediately following the date you execute it. This agreement will not become
effective until the end of this seven (7) day period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates indicated below.
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READ CAREFULLY. THIS DOCUMENT CONTAINS A RELEASE.
THE XXXXXXX-XXXXXXXX COMPANY XXXXX X. XXXXXXX
By: /s/ /s/
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Title: Date:
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Date:
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