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EXHIBIT 10.2
SEVERANCE AGREEMENT
THIS AGREEMENT is entered into as of the 27th day of November, 2000 by
and between Xxxxxxx Computer Services, Inc., a Delaware corporation, and M.
Xxxxx Xxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive currently serves as Chairman and Chief
Executive Officer of the Company (as defined in Section 1) and his services and
knowledge are valuable to the Company in connection with the management of one
or more of the Company's principal operating facilities, divisions, departments
or subsidiaries; and
WHEREAS, the Board (as defined in Section 1) has determined that it is
in the best interests of the Company and its stockholders to secure the
Executive's continued services and to ensure the Executive's continued
dedication and objectivity in the event of any threat or occurrence of, or
negotiation or other action that could lead to, or create the possibility of, a
Change in Control (as defined in Section 1) of the Company, without concern as
to whether the Executive might be hindered or distracted by personal
uncertainties and risks created by any such possible Change in Control, and to
encourage the Executive's full attention and dedication to the Company, the
Board has authorized the Company to enter into this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Company and the Executive
hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means:
(1) a material breach by the Executive of those duties and
responsibilities of the Executive which do not differ in any material
respect from the duties and responsibilities of the Executive during the
90-day period immediately prior to a Change in Control (other than as a
result of incapacity due to physical or mental illness) which is
demonstrably willful and deliberate on the Executive's part, which is
committed in bad faith or without reasonable belief that such breach is
in the best interests of the Company and which is not remedied in a
reasonable period of time after receipt of written notice from the
Company specifying such breach or
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(2) the commission by the Executive of a felony involving moral
turpitude.
(c) "Change in Control" means:
(1) the acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act, of beneficial ownership within the
meaning of Rule 13d-3 promulgated under the Exchange Act, of 35% or more
of either (i) the then outstanding shares of common stock of the Company
(the "Outstanding Common Stock") or (ii) the combined voting power of the
then outstanding securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Voting Securities");
excluding, however, the following: (A) any acquisition directly from the
Company (excluding any acquisition resulting from the exercise of an
exercise, conversion or exchange privilege unless the security being so
exercised, converted or exchanged was acquired directly from the
Company), (B) any acquisition by the Company, (C) any acquisition by an
employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (D) any
acquisition by any corporation pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection (3) of this Section 1(c);
provided further, that for purposes of clause (B), if any Person (other
than the Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by
the Company) shall become the beneficial owner of 35% or more of the
Outstanding Common Stock or 35% or more of the Outstanding Voting
Securities by reason of an acquisition by the Company, and such Person
shall, after such acquisition by the Company, become the beneficial owner
of any additional shares of the Outstanding Common Stock or any
additional Outstanding Voting Securities and such beneficial ownership is
publicly announced, such additional beneficial ownership shall constitute
a Change in Control;
(2) individuals who, as of the date hereof, constitute the Board
of Directors (the "Incumbent Board") cease for any reason to constitute
at least a majority of such Board; provided that any individual who
becomes a director of the Company subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders, was
approved by the vote of at least a majority of the directors then
comprising the Incumbent Board shall be deemed a member of the Incumbent
Board; and provided further, that any individual who was initially
elected as a director of the Company as a result of an actual or
threatened solicitation by a Person for the purpose of opposing a
solicitation by any other Person with respect to the election or removal
of directors, or any other actual or threatened solicitation of proxies
or consents by or on behalf of any Person other than the Board shall not
be deemed a member of the Incumbent Board;
(3) the consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of
the Company (a "Corporate Transaction"); excluding, however, a Corporate
Transaction pursuant to which (i) all or substantially all of the
individuals or entities who are the beneficial owners, respectively, of
the Outstanding Common Stock and the Outstanding Voting
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Securities immediately prior to such Corporate Transaction will
beneficially own, directly or indirectly, more than 65% of, respectively,
the outstanding shares of common stock, and the combined voting power of
the outstanding securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation which
as a result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or indirectly) in
substantially the same proportions relative to each other as their
ownership, immediately prior to such Corporate Transaction, of the
Outstanding Common Stock and the Outstanding Voting Securities, as the
case may be, (ii) no Person (other than: the Company; any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company; the corporation resulting from
such Corporate Transaction; and any Person which beneficially owned,
immediately prior to such Corporate Transaction, directly or indirectly,
35% or more of the Outstanding Common Stock or the Outstanding Voting
Securities, as the case may be) will beneficially own, directly or
indirectly, 35% or more of, respectively, the outstanding shares of
common stock of the corporation resulting from such Corporate Transaction
or the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of directors and
(iii) individuals who were members of the Incumbent Board will constitute
at least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(4) the consummation of a plan of complete liquidation or
dissolution of the Company.
(d) "Company" means Xxxxxxx Computer Services, Inc., a Delaware
corporation.
(e) "Date of Termination" means:
(1) the effective date on which the Executive's employment by the
Company terminates as specified in a prior written notice by the Company
or the Executive, as the case may be, to the other, delivered pursuant to
Section 11 or
(2) if the Executive's employment by the Company terminates by
reason of death, the date of death of the Executive.
(f) "Good Reason" means, without the Executive's express written
consent, the occurrence of any of the following events after a Change in
Control:
(1) the assignment to the Executive of any duties inconsistent in
any material respect with the Executive's position(s), duties,
responsibilities or status with the Company immediately prior to such
Change in Control, or a change in the Executive's reporting
responsibilities, titles or offices with the Company as in effect
immediately prior to such Change in Control;
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(2) a reduction by the Company in the Executive's rate of annual
base salary or bonus opportunity as in effect immediately prior to such
Change in Control or as the same may be increased from time to time
thereafter;
(3) any requirement of the Company that the Executive be based
more than 50 miles from the facility where the Executive is located at
the time of the Change in Control;
(4) the failure of the Company to (i) continue in effect any
employee benefit plan or compensation plan in which the Executive is
participating immediately prior to such Change in Control, unless the
Executive is permitted to participate in other plans providing the
Executive with substantially comparable benefits, or 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
such plan and (ii) provide the Executive and the Executive's dependents
welfare benefits (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs) in
accordance with the most favorable plans, practices, programs and
policies of the Company and its affiliated companies; or
(5) the failure of the Company to obtain the assumption agreement
from any successor as contemplated in Section 10(b).
For purposes of this Agreement, any good faith determination of Good
Reason made by the Executive shall be conclusive; provided, however, that an
isolated, insubstantial and inadvertent action taken in good faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive shall not constitute Good Reason.
(g) "Nonqualifying Termination" means a termination of the Executive's
employment:
(1) by the Company for Cause,
(2) by the Executive for any reason other than a Good Reason,
(3) as a result of the Executive's death or
(4) by the Company due to the Executive's absence from his duties
with the Company on a full-time basis for at least 180 consecutive days
as a result of the Executive's incapacity due to physical or mental
illness.
Notwithstanding anything contained in this Section 1(g), a termination of the
Executive's employment for any reason whatsoever during the "Window Period"
(hereinafter defined) shall not constitute a Nonqualifying Termination.
(h) "Termination Period" means the period of time beginning with a
Change in Control and ending on the earlier to occur of:
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(1) two years following such Change in Control and
(2) the Executive's death.
(i) "Window Period" means the 30-day period commencing one year after
the date of a Change in Control.
2. Obligations of the Executive. The Executive agrees that in the
event any person or group attempts a Change in Control, he shall not voluntarily
leave the employ of the Company without Good Reason
(a) until such attempted Change in Control terminates or
(b) if a Change in Control shall occur, until 90 days following such
Change in Control. For purposes of clause (a) of the preceding sentence, Good
Reason shall be determined as if a Change in Control had occurred when such
attempted Change in Control became known to the Board.
3. Payments Upon Termination of Employment.
(a) If during the Termination Period the employment of the Executive
shall terminate, other than by reason of a Nonqualifying Termination, then the
Company shall pay to the Executive (or the Executive's beneficiary or estate)
within 30 days following the Date of Termination, as compensation for services
rendered to the Company:
(1) a cash amount equal to the sum of (i) the Executive's full
annual base salary from the Company and its affiliated companies through
the Date of Termination, to the extent not theretofore paid, (ii) the
Executive's then current target annual bonus, multiplied by a fraction,
the numerator of which is the number of days in the fiscal year in which
the Change in Control occurs through the Date of Termination and the
denominator of which is 365 or 366, as applicable, and (iii) any
compensation previously deferred by the Executive (together with any
interest and earnings thereon) and any accrued vacation pay, in each case
to the extent not theretofore paid; plus
(2) a lump-sum cash amount (subject to any applicable payroll or
other taxes required to be withheld pursuant to Section 5) in an amount
equal to the sum of (i) two (2) times the Executive's highest annual base
salary from the Company and its affiliated companies in effect during the
12-month period prior to the Date of Termination and (ii) two (2) times
the Executive's target annual bonus in effect immediately prior to the
Change in Control or immediately prior to the Date of Termination,
whichever is higher; provided, however, that any amount paid pursuant to
this Section 3(a)(2) shall be paid in lieu of any other amount of
severance relating to salary or bonus continuation to be received by the
Executive upon termination of employment of the Executive under any
severance plan, policy or arrangement of the Company.
(3) For the period commending on the Date of Termination and
ending on the earlier of (i) the expiration of the three year period
following the Date of
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Termination and (ii) the date on which the Executive becomes eligible to
participate in and receive medical benefits under a plan or arrangement
sponsored by another employer, the Company shall continue the Executive's
medical coverage, upon the same terms and otherwise to the same extent as
such coverage shall have been in effect immediately prior to the Date of
Termination or, if more favorable to the Executive, as provided generally
with respect to other peer executives of the Company and its affiliated
companies, and the Company and the Executive shall share the costs of the
continuation of such medical coverage in the same proportion as such
costs were shared immediately prior to the Date of Termination.
(b) If during the Termination Period the employment of the Executive
shall terminate by reason of a Nonqualifying Termination, then the Company shall
pay to the Executive within 30 days following the Date of Termination, all
payments and benefits to which the Executive is entitled pursuant to the terms
of the Employment Agreement between the Company and the Executive, dated as of
November 27, 2000, as amended from time to time, and any compensation previously
deferred by the Executive (together with any interest and earnings thereon) and
any accrued vacation pay, in each case to the extent not theretofore paid.
4. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company or
its affiliated companies to or for the benefit of the Executive (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise, but determined without regard to any additional payments required
under this Section 4) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code, or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 4(c), all determinations
required to be made under this Section 4, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by the Company's
public accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change in Control, the Executive shall appoint another
nationally recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 4, shall be paid by the Company to the Executive within five days of the
receipt of the Accounting
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Firm's determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive with a written opinion
that failure to report the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding upon the
Company and the Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 4(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than 10 business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which the Executive gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(1) give the Company any information reasonably requested by the
Company relating to such claim,
(2) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company,
(3) cooperate with the Company in good faith in order to contest
effectively such claim, and
(4) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 4(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest
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to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided further, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and provided further, that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 4(c), the Executive becomes entitled to receive,
and receives, any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section 4(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Section 4(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
5. Withholding Taxes. The Company may withhold from all payments due
to the Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
6. Reimbursement of Expenses. If any contest or dispute shall arise
under this Agreement involving termination of the Executive's employment with
the Company or involving the failure or refusal of the Company to perform fully
in accordance with the terms hereof, the Company shall reimburse the Executive,
on a current basis, for all legal fees and expenses, if any, incurred by the
Executive in connection with such contest or dispute, together with interest
thereon at a rate equal to the prime rate, as published under "Money Rates" in
The Wall Street Journal from time to time, but in no event higher than the
maximum legal rate permissible under applicable law, such interest to accrue
from the date the Company receives the Executive's statement for such fees and
expenses through the date of payment thereof; provided, however, that in the
event the resolution of any such contest or dispute includes a finding denying,
in total, the Executive's claims in such contest or dispute, the Executive shall
be required to reimburse the Company, over a period of 12 months from the date
of such resolution, for all sums advanced to the Executive pursuant to this
Section 6.
7. Operative Event. Notwithstanding any provision herein to the
contrary, no amounts shall be payable hereunder unless and until there is a
Change in Control at a time when the Executive is employed by the Company.
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8. Termination of Agreement. This Agreement shall be effective on the
date hereof; provided, however, that this Agreement shall terminate in any event
upon the earlier to occur of (i) termination of the Executive's employment with
the Company prior to a Change in Control and (ii) the Executive's death.
9. Scope of Agreement. Nothing in this Agreement shall be deemed to
entitle the Executive to continued employment with the Company or its
subsidiaries and, if the Executive's employment with the Company shall terminate
prior to a Change in Control, then the Executive shall have no further rights
under this Agreement; provided, however, that any termination of the Executive's
employment following a Change in Control shall be subject to all of the
provisions of this Agreement.
10. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any merger or
consolidation of the Company whereby the Company is or is not the surviving or
resulting corporation or as a result of any transfer of all or substantially all
of the assets of the Company. In the event of any such merger, consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon the
surviving or resulting corporation or the person or entity to which such assets
are transferred.
(b) The Company agrees that concurrently with any merger,
consolidation or transfer of assets referred to in Section 10(a), it will cause
any successor or transferee unconditionally to assume, by written instrument
delivered to the Executive (or his beneficiary or estate), all of the
obligations of the Company hereunder. Failure of the Company to obtain such
assumption prior to the effectiveness of any such merger, consolidation or
transfer of assets shall be a breach of this Agreement and shall entitle the
Executive to compensation and other benefits from the Company in the same amount
and on the same terms as the Executive would be entitled hereunder if the
Executive's employment were terminated following a Change in Control other than
by reason of a Nonqualifying Termination. For purposes of implementing the
foregoing, the date on which any such merger, consolidation or transfer becomes
effective shall be deemed the Date of Termination.
(c) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amounts would be payable to the Executive hereunder had the
Executive continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to such person or
persons appointed in writing by the Executive to receive such amounts or, if no
person is so appointed, to the Executive's estate.
11. Notices.
(a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or five days after deposit in the
United States mail, certified and return receipt requested, postage prepaid,
addressed
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(1) if to the Executive, to M. Xxxxx Xxxxx, 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, and if to the Company, to Xxxxxxx Computer
Services, Inc., 0000 Xxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, attention
General Counsel, or
(2) 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.
(b) A written notice of the Executive's Date of Termination by the
Company or the Executive, as the case may be, to the other, shall (i) indicate
the specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated and (iii) specify the termination date (which date
shall be not less than three days after the giving of such notice by the
Executive of termination during the Window Period and which date shall be not
less than 15 days after the giving of such notice under other circumstances).
The failure by the Executive or the Company to set forth in such notice any fact
or circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
12. Full Settlement; Resolution of Disputes.
(a) The Company's obligation to make any payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and such amounts shall not be reduced
whether or not the Executive obtains other employment.
(b) If there shall be any dispute between the Company and the
Executive in the event of any termination of the Executive's employment, then,
unless and until there is a final, nonappealable judgment by a court of
competent jurisdiction declaring that such termination was for Cause, that the
determination by the Executive of the existence of Good Reason was not made in
good faith, or that the Company is not otherwise obligated to pay any amount or
provide any benefit to the Executive and his dependents or other beneficiaries,
as the case may be, under Sections 3(a) and 3(b), the Company shall pay all
amounts, and provide all benefits, to the Executive and his dependents or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to Sections 3(a) and 3(b) as though such termination were by
the Company without Cause or by the Executive with Good Reason; provided,
however, that the Company shall not be required to pay any disputed amounts
pursuant to this Section 12(b) except upon receipt of an undertaking by or on
behalf of the Executive to repay all such amounts to which the Executive is
ultimately adjudged by such court not to be entitled.
13. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any corporation or
other entity in
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which the Company has a direct or indirect ownership interest of 50% or more of
the total combined voting power of the then outstanding securities of such
corporation or other entity entitled to vote generally in the election of
directors.
14. Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois without regard to the
principle of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which other provisions shall remain in
full force and effect.
15. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
16. Miscellaneous. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and signed by
the Executive and by a duly authorized officer of the Company. No waiver by
either party hereto at any time of any breach by the other party hereto 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. Failure by the
Executive or the Company to insist upon strict compliance with any provision of
this Agreement or to assert any right the Executive or the Company may have
hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement. Except as
otherwise expressly set forth in this Agreement, the rights of, and benefits
payable to, the Executive, his estate or his beneficiaries pursuant to this
Agreement are in addition to any rights of, or benefits payable to, the
Executive, his estate or his beneficiaries under any other employee benefit plan
or compensation program of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer of the Company and the Executive has
executed this Agreement as of the day and year first above written.
XXXXXXX COMPUTER SERVICES, INC.
By:
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M. XXXXX XXXXX
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