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Exhibit 10.3
1996 Restated Executive Agreement
RESTATED EXECUTIVE AGREEMENT
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THIS RESTATED EXECUTIVE AGREEMENT (the "Agreement") is made
and entered into this ---- day of ------------, 1996, by and
between Petrolite Corporation (the "Company") and 1, residing
at 2, (the "Executive").
WHEREAS, the Executive and the Company have entered into an
Executive Agreement dated 3 (the "Executive Agreement"); and
WHEREAS, the Executive and Company desire to amend the
Executive Agreement to clarify certain of its provisions and to
make additional technical and conforming changes, without
materially changing the respective benefits and obligations of
the parties thereunder; and
WHEREAS, the Executive and the Company desire to restate the
Executive Agreement in its entirety by entering into this
Agreement, which Restated Executive Agreement will replace and
supersede the Executive Agreement as provided herein; and
WHEREAS, the Board of Directors of the Company has approved
and authorized the execution of this Agreement:
In consideration of the mutual covenants and agreements
herein, the parties agree as follows:
1. Employment. The Company employs Executive on the terms
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hereinafter set forth and Executive accepts such employment.
Executive shall devote his full time and attention, and best
efforts, to the performance of his duties as assigned from time
to time by the Company.
2. Compensation and Related Arrangements. For all
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services rendered by Executive, the Company shall pay Executive
an annual base salary of not less than the Executive's annual
base salary on the date of this Agreement, payable pursuant to
the Company's normal payroll practices. Executive may
participate in such employee benefit plans as the Company
maintains for its employees generally, according to their
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respective terms, and Executive may be designated to participate
in the Company's incentive compensation and stock incentive
plans.
3. Termination of Employment. This Agreement does not
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create or provide for any period of employment and Executive's
employment may be terminated at will by Executive or the Company.
A. Termination by the Company "For Cause". If the
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Company terminates the employment of Executive "For Cause",
all further obligations of the Company under this Agreement
shall end automatically. The term "For Cause" means acts of
theft, unethical conduct or dishonesty affecting the assets,
properties or business of the Company, willful misconduct,
material dereliction of duty, or violation of any of the
covenants set forth in Section 4 below.
B. Termination by the Company other than "For Cause".
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If the Company terminates the employment of Executive other
than "For Cause", (i) the Company shall continue to pay
Executive his base salary then in effect for one year
following the termination of Executive's employment; and,
(ii) if Executive elects and qualifies for COBRA
continuation of medical coverage under the Petrolite
Corporation Comprehensive Medical Plan, the premium payable
by Executive during the first twelve (12) months of COBRA
continuation of medical coverage will be the premium then
payable by active employees of the Company for the same
coverage, as the same may be adjusted from time to time.
Provided, however, as a condition precedent to the Company's
obligations under this Section 3B, Executive shall execute
and deliver a general release to be provided by the Company
substantially in the form attached hereto as Exhibit A.
C. Termination by Executive. If Executive terminates
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his employment with the Company voluntarily for any reason,
if Executive dies, or if Executive becomes disabled from
performing Executive's duties for the Company, except as
provided otherwise in Section 6 hereof the Company shall
have no further obligations to Executive under this
Agreement.
4. Special Covenants by Executive.
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A. Covenant Not to Compete. Executive acknowledges
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that the Company (including its subsidiaries and affiliates)
has developed a valuable and extensive worldwide trade in
its products and that its Confidential Information and
customers, which have been established and maintained at
substantial expense, are of great value to the Company. The
Company will permit Executive to utilize, during his
employment and in pursuit of the Company's business, the
Company's Confidential Information and will provide training
about its business and operations, including the Company's
products, customers and customer requirements. Executive
covenants to the Company that neither he nor any
corporation, partnership, business firm or entity in which
he may now or hereafter have an equity interest (excepting a
publicly-traded corporation in which he has a less than 1%
interest for investment purposes), or by which he may be
employed or otherwise affiliated as an employee,
representative, consultant, or otherwise, nor any person
subject to his control or direction will, during the entire
"Period of this Covenant Not to Compete" as hereafter
defined, within the "Trade Area" hereafter specified,
directly or indirectly:
i. Conduct, engage in, be connected
with, have any interest in, consult for, or aid or
assist in any manner any person, firm or business
entity (whether a corporation, partnership,
proprietorship or otherwise) in engaging in the
development, manufacture, distribution, sale or
application of services or products like or similar to
any services or products now being developed,
manufactured, marketed or distributed by the Company or
any of its affiliates, or which may be developed,
manufactured, marketed or distributed by the Company or
any of its affiliates at any time during Executive's
employment with the Company or any of its affiliates;
or
ii. In any way solicit, divert, take
away or interfere with any of the business, customers,
trade or patronage of the Company or its subsidiaries
or affiliates; or
iii. Seek to employ or otherwise retain any
person who was an employee of the Company or any of its
affiliates during
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the twelve (12) months immediately preceding Executive's
termination.
The "Period of this Covenant" shall commence on the
date of this Agreement and shall terminate automatically
eighteen (18) months from and after the date that Executive
shall no longer be employed by the Company.
The "Trade Area" shall be deemed to encompass those
specific geographical areas of the world where the
Executive, or any individual who reported to the Executive,
was involved in, had access to Confidential Information
about, or had a material influence with respect to, the
business or operations of the Company (or any of its
subsidiaries or affiliates) at any time during the twelve
(12) months immediately preceding termination of Executive's
employment.
Executive acknowledges and agrees that the "Period of
this Covenant Not to Compete" is the minimum period of time,
and that the "Trade Area" is the minimum area necessary, to
protect the Company reasonably and adequately in its
business operations.
B. Covenant of Confidentiality. Executive covenants
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and agrees that he will not, at any time either during or
after Executive's employment with the Company, reveal or
otherwise communicate to any person or entity any
Confidential Information to which he will or may have
access, except as such communication may be necessarily
incidental to the performance of his duties with the Company
under this Agreement. For purposes of this Agreement
"Confidential Information" shall mean all confidential and
proprietary information and trade secrets of the Company
including, but not limited to, financial and accounting
information and procedures, business strategies and plans,
product pricing data and product formulae, identity of
customers, customer requirements, sales data, marketing
information, manufacturing processes, inventions, know-how,
technology, special processes and techniques, and
distribution methods of the Company or any of its
subsidiaries or affiliates, but shall not include
Confidential Information that is in the public domain or
becomes part of the public domain other than through the
fault of Executive. Executive shall deliver promptly to
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the Company at the termination of his employment, or at any
other time that the Company may request, all memoranda,
diaries, electronic data storage medium, notebooks, computer
software, sales or service manuals and data, and all other
documents relating to any Confidential Information.
C. Intellectual Property. Executive shall
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communicate promptly to the Company all inventions,
discoveries, works of authorship, and improvements, whether
patentable or copyrightable or not (the "Intellectual
Property"), which Executive makes, conceives or develops,
either alone or in collaboration with others, while in the
employment of the Company which (i) result from or are
suggested by any work which Executive may perform for or on
behalf of the Company, or (ii) which relate to the
Company's business or interests. All such Intellectual
Property (including any patents and copyright registrations
which may be issued based on such Intellectual Property)
shall be the sole and exclusive property of the Company.
Executive hereby assigns to the Company all of Executive's
entire right, title and interest in all such Intellectual
Property, patents and patent applications, and agrees to
execute all documents reasonably requested by the Company
with respect thereto. If Executive, or anyone on his
behalf, files a patent application for any such Invention
within six (6) months after termination of Executive's
employment with the Company, Executive agrees that such
Intellectual Property shall be presumed to have been
conceived during the period of Executive's employment with
the Company.
D. Confidential Information of Others. Executive
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will not disclose to the Company, or use for its benefit,
any proprietary information of others, including any of
Executive's former employers.
E. Breach of Covenants. Executive has had the
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opportunity to consult with Executive's legal adviser
concerning this Agreement, understands the nature, term and
effects of the Executive's covenants herein, and
acknowledges and agrees that such covenants are reasonable
and necessary for the protection of the Company. Executive
further acknowledges and agrees that monetary damages could
not compensate the Company adequately in the event of
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Executive's violation of any of the covenants herein and
that injunctive relief would be essential for the protection
of the Company. Executive therefore agrees that the Company
may have such injunctive relief (upon due notice and hearing
but without any requirement for a bond) as may be necessary
to provide full and ongoing protection to the Company, in
addition to any other relief as may appertain at equity or
law. Suit may be filed in an appropriate Federal or State
Court in the State of Missouri, and Executive hereby
consents to the jurisdiction of such court and agrees that
service of process upon Executive by certified or registered
mail shall be deemed to have the same legal effect as if
personal service had been made upon Executive in the
jurisdiction in which such suit was initiated.
F. Reformation. If any of the covenants set forth in
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this Section 4 shall be deemed by the court in which suit is
brought to be unenforceable as written by reason of its
scope in terms of area, period of time, or activity, but may
be made enforceable by adjusting the area, period of time,
or activity applicable to such covenant, Executive and the
Company stipulate and agree that such covenant shall be
deemed automatically to be adjusted for purposes of such
suit to the end that such covenant, as modified in
connection with such suit, shall be enforceable to the
fullest extent permissible under the laws and public
policies of the State of Missouri, the State under which
this contract is governed.
G. Survival. The provisions of this Section 4 shall
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survive any termination of the Executive's employment with
the Company.
5. Withholding. The Company may, to the extent required
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by law, withhold applicable federal, state and local income and
other taxes from any payments made to Executive hereunder.
6. Change of Control Benefits. If Executive terminates
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his employment with the Company within the one year immediately
following a Change of Control, or if the Company terminates the
employment of Executive other than "For Cause" within the six
months immediately preceding and the two years immediately
following a Change of Control (the effective date of either such
termination hereafter referred to as the "Termination Date"),
Executive shall be entitled to the benefits provided in
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this Section 6 in lieu of those provided in Section 3 of this
Agreement; provided, however, as a condition precedent to the
Company's obligation to provide the benefits in this Section 6,
Executive shall execute and deliver a general release
substantially in the form attached hereto as Exhibit X.
X. Xxxxxxxxx Benefits. The Company shall pay
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Executive a lump sum amount, in cash, equal to the sum of:
(i) two times the Executive's Annual Base Salary and
(ii) the Incentive Payment, as hereafter defined.
B. Continued Welfare Benefits. Until the earlier of
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eighteen (18) months following the Termination Date or the
date on which Executive becomes employed by a new employer,
the Company (or its successor) shall at its expense (less
applicable premium or other payments required from time to
time of active employees, and subject to any deductibles
contained in the applicable plan) provide Executive with
medical, dental, life insurance, disability and accidental
death and dismemberment benefits at the highest level for
which Executive and his or her dependents were enrolled on
the Termination Date. If the Company cannot provide any of
such benefits to Executive on a nontaxable basis through an
employee benefit plan by reason of any law, government
regulation, or third-party contractual provision, or if it
would be discriminatory under Internal Revenue Code Section
105(h) for the Company to provide any of such benefits
through an employee benefit plan, then the Company otherwise
shall procure or purchase, at its expense, a similar benefit
or benefits for Executive and his applicable dependents and
beneficiaries and, if such coverage or benefit received by
Executive is subject to federal, state or local income
taxes, the Company shall pay Executive an amount sufficient
to reimburse him for tax liability he reasonably incurs
because of (i) such coverage or benefits and (ii) such
reimbursement payment, calculated substantially in
accordance with Exhibit B. If Executive becomes employed by
an employer that maintains a major medical plan (or its
equivalent) that either:
i. does not cover Executive with
respect to a pre-existing condition which was covered
under the Petrolite medical plan, or
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ii. does not cover Executive for a
designated waiting period,
Executive's medical plan benefit under this Agreement shall
continue (but shall be limited in the event of non-coverage
due to a pre-existing condition to the pre-existing
condition itself) until the earlier of the end of the
applicable period of non-coverage under the new employer's
plan or the end of the eighteenth month following the
Termination Date.
Notwithstanding the foregoing, the Company and the Executive
may agree on a cash payment in lieu of all or some portion
of the benefits provided under this Section.
C. Effect on Stock Option Agreements.
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Notwithstanding the terms of any stock option agreement
between the Company and Executive to the contrary, to the
extent that any stock option held by Executive is to be
counted in determining whether all or any portion of the
Payment (as hereafter defined) is subject to Excise Taxes
(as hereafter defined), or is not considered to be
reasonable compensation for personal services, the option
shall be subject to the adjustment provided in Section 6D of
this Agreement.
D. Best Payment Provision.
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i. In the event that the grant,
exercise or vesting of any stock options in connection
with a Change of Control, together with the value of
all other payments and benefits received or to be
received by the Executive upon a Change of Control
(collectively the "Payment"), would result in all or a
portion of the Payment being subject to excise tax
under Section 4999 of the Internal Revenue Code (the
"Code"), then the Payment to the Executive, including
the value of stock options, shall be either (A) the
full amount of the Payment, or (B) such lesser amount
which would result in no portion of the Payment being
subject to excise tax under Section 4999 of the
Internal Revenue Code, whichever of the foregoing
amounts, taking into account the applicable federal,
state, and local employment taxes, income taxes, and
the excise tax imposed by Section 4999 of the Code,
results in the receipt by the
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Executive, on an after-tax basis, of the greatest
amount of the Payment notwithstanding that all or some
portion of the Payment may be taxable under Section 4999
of the Code. All determinations required to be made
under this Section shall be made by Price Waterhouse or
any other nationally recognized accounting firm which is
the Company's outside auditor at the time of such
determination, which other firm must be reasonably
acceptable to Executive (the "Accounting Firm"). The
Company shall cause the Accounting Firm to provide
detailed supporting calculations of its determinations
to the Company and Executive. The Company shall give
notice to the Accounting Firm within 15 business days
after an event entitling Executive to a payment under
this Agreement. All fees and expenses of the
Accounting Firm shall be borne solely by the Company.
The Accounting Firm also shall provide the Company and
Executive with written advice to the effect that there
is substantial authority for the treatment of the
Payment on their respective federal income tax returns
in a manner that is consistent with the Accounting
Firm's determinations under this Section. The
Accounting Firm shall consult with the Executive in
making the determinations required under this Section
and, to the extent practicable, shall comply with any
stated preference of the Executive with respect to the
allocation of any reduction in the Payment.
ii. If, after the Executive has
received the Payment calculated in accordance with
Section 6Di hereof, it is determined, pursuant to final
regulations or published rulings of the Internal
Revenue Service, final judgment of a court of competent
jurisdiction or, if so requested by the Executive,
pursuant to an opinion of a nationally recognized
accounting or tax law firm, that the Accounting Firm's
determination under Section 6Di hereof was incorrect
and that the Executive's excise tax liability under
Code Section 4999 with respect to the Payment exceeds
the amount of such tax (if any) that the Executive
would have incurred had such determination been
correct, the Company shall promptly pay the Executive
an amount equal to the sum of (a) any such additional
excise tax liability, plus (b) any interest, fines,
penalties, expenses and other costs incurred by the
Executive and resulting from the
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Executive having taken a position that the Payment, or a
portion of the Payment, is not subject to Excise Taxes
in accordance with the determination made by the
Accounting Firm, plus (c) the amount necessary to
reimburse the Executive for any federal, state, local or
other income or excise taxes payable by the Executive
with respect to the reimbursement amounts (including the
amount payable under this clause (c)) substantially in
accordance with the formula set forth on Exhibit B,
which is attached hereto and incorporated by reference
herein.
E. Costs of Proceedings. The Company shall pay all
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costs and expenses, including attorneys' fees and
disbursements, at least monthly, of Executive in connection
with any legal proceeding (including arbitration), whether
or not instituted by the Company or Executive, relating to
the interpretation or enforcement of any provision of
Section 6 of this Agreement, except that if Executive
instituted the proceeding and the judge, arbitrator or other
individual presiding over the proceeding affirmatively finds
that Executive instituted the proceeding in bad faith,
Executive shall pay all costs and expenses, including
attorneys' fees and disbursements, of Executive. The
Company shall pay prejudgment interest on any money judgment
obtained by Executive as a result of such proceeding,
calculated at the prime rate of interest as reported in The
Wall Street Journal for the day judgment is entered.
F. Section 6 Definitions. As used in this Section 6
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of this Agreement the following terms, when capitalized,
have the meaning indicated:
i. "Annual Base Salary" means
Executive's annual rate of base salary in effect on the
date of the Change of Control or the Termination Date,
whichever is higher.
ii. "Change of Control" means the
first to occur of any of the following dates:
a. The date of:
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(i) The closing of any
transaction, including a
consolidation, merger, sale,
lease, exchange or other
transfer, where the majority of
the directors of the continuing or
surviving corporation are not
Continuing Directors;
(ii) The liquidation or
dissolution of the Company;
b. The date any person (as
defined in Section 13(d) of the Securities
Exchange Act of 1934, hereinafter the "1934 Act"),
other than Wm. X. Xxxxxxxxx & Company or one or
more trusts established by the Company for the
benefit of employees of the Company or its
subsidiaries, shall become the beneficial owner
(within the meaning of Rule 13d-3 under the 0000
Xxx) of twenty percent (20%) or more of the
Company's outstanding Capital Stock (unless such
shares have been issued to such person directly by
the Company); except that, those persons who filed
a Statement on Schedule 13D dated February 24,
1994, with Wm. X. Xxxxxxxxx & Company, including
those persons who were included in subsequent
amendments to such Statement on Schedule 13D
through the date of this Agreement, shall not be
deemed to have beneficial ownership of Petrolite
Capital Stock reported therein solely by virtue of
such 13D filings;
c. The date Wm. X. Xxxxxxxxx &
Company shall become the beneficial owner (within
the meaning of Rule 13d-3 under the 0000 Xxx) of
more than forty-eight percent (48%) of the
Company's outstanding Capital Stock; except that,
Wm. X. Xxxxxxxxx & Company shall not be deemed to
have beneficial ownership of Petrolite Capital
Stock solely by virtue of its having filed a
Statement on Schedule 13D dated February 24, 1994,
as subsequently amended through the date of this
Agreement; or
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d. The date on which individuals
who qualify as Continuing Directors shall have
ceased for any reason to constitute at least a
majority of the Board of Directors of the Company
or a majority of the Board of Directors of a
corporation owning, directly or indirectly, not
less than eighty percent (80%) of the outstanding
shares of the Company.
iii. "Continuing Director" means:
a. any member of the Board of
Directors of the Company at the close of business
on the date of this Agreement;
b. any member of the Board of
Directors of the Company who succeeds any
Continuing Director if such successor was elected
or nominated for election by the affirmative votes
of the greater of: (i) a majority of the
Continuing Directors then in office and (ii) five
Continuing Directors; or
c. any director elected or
nominated for election to fill any vacancy or
newly-created directorship on the Board of
Directors of the Company by the affirmative votes
of the greater of: (i) a majority of the
Continuing Directors then in office and (ii) five
Continuing Directors.
iv. "Incentive Payment" means twice
the cash amount payable to Executive under a cash
incentive plan for the fiscal year during which the
Change of Control occurs, calculated on the assumption
that all performance measurements are achieved and that
Executive is entitled to the maximum payment available
to Executive for the fiscal year. If, for any reason,
a cash amount payable to Executive under a cash
incentive plan has not been established for the year in
which the Change of Control occurs, the Incentive
Payment shall be twice the cash amount paid to
Executive under a cash incentive plan for the last
fiscal year with respect to which a cash payment was
made.
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7. Coordination with Company Benefit Plans. The benefits
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provided in this Agreement are in lieu of, and not in addition
to, any severance benefits otherwise available to Executive under
any severance benefit plan maintained by the Company. Except as
provided otherwise in this Agreement, this Agreement shall not be
construed to affect any rights Executive may have under any
employee benefit plan of the Company including, but not limited
to, the Employees' Savings Plan, the Non-Qualified Savings Plan,
and the Company's Retirement Plan.
8. Mitigation. Executive shall not be required to
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mitigate the amount of any payment provided under this Agreement
by seeking other employment or otherwise, and compensation earned
from such employment or otherwise shall not reduce the amounts
otherwise payable under this Agreement. No amounts payable under
Section 6 of this Agreement shall be subject to reduction or
offset in respect of any claims which the Company (or any other
person or entity) may have against Executive.
9. Indemnification; Director's and Officer's Liability
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Insurance. After any termination of employment Executive shall
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retain all rights to indemnification under applicable law and
under the Petrolite Certificate of Incorporation or By-Laws, as
they may be amended or restated from time to time. In addition,
the Company shall maintain Director's and Officer's liability
insurance on behalf of Executive, at the level in effect
immediately prior to the date of termination, for the two (2)
year period following the date of termination and throughout the
period of any applicable statute of limitations.
10. Situs. This Agreement has been entered into in the
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State of Missouri and is a Missouri contract. Accordingly, its
validity, and its terms and provisions, shall be governed by, and
construed and enforced in accordance with, the laws of the State
of Missouri without application of any principles of conflict of
laws.
11. Scope and Binding Effect of Agreement. This Agreement
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represents the complete agreement between the parties regarding
the subject matter hereof and shall be binding upon, and inure to
the benefit of, the Company and its successors (including
successors by merger) and assigns, and Executive, his heirs,
executors, administrators and legal representatives. The
Executive Agreement is replaced and superseded by
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this Agreement; provided, however, if any provision of this
Agreement is judicially determined to be unenforceable for any
reason that portion of the Executive Agreement relating to the
subject matter of the unenforceable provision shall be deemed
revived and reinstated. It is expressly agreed that the rights
and obligations of Executive hereunder may not be assigned or
delegated by Executive, but that the Company may assign this
Agreement to any successor to the Company's business provided
that such Assignee assumes the Company's obligations hereunder
without the Company being relieved therefrom. It is expressly
understood that all references herein to the Company shall be
deemed to include the surviving corporation in any merger
involving the Company.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
PETROLITE: PETROLITE CORPORATION
By: --------------------------
EXECUTIVE:
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EXHIBIT A
GENERAL RELEASE
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For good and valuable consideration, the receipt and
sufficiency of which is acknowledged hereby, the Executive, with
the intention of binding himself/herself and his/her heirs,
executors, administrators and assigns, does hereby release,
remise, acquit and forever discharge Petrolite Corporation, a
Delaware corporation, ("Petrolite"), and its present and former
officers, directors, executives, agents, attorneys, employees,
affiliated companies, divisions, subsidiaries, successors,
predecessors and assigns (collectively the "Released Parties"),
of and from any and all claims, actions, causes of action,
demands, rights, damages, debts, sums of money, accounts,
financial obligations, suits, expenses, attorneys' fees and
liabilities of whatever kind or nature in law, equity or
otherwise, whether now known or unknown, suspected or
unsuspected, which the Executive, individually or as a member of
a class, now has, owns or holds, or has at any time heretofore
had, owned or held, against any Released Party arising out of or
in any way connected with the Executive's employment relationship
with Petrolite, its subsidiaries, predecessors or affiliated
entities, or the termination thereof, including without
limitation, any claims for severance or vacation benefits, unpaid
wages, salary or incentive payment, breach of contract, wrongful
discharge, impairment of economic opportunity, reimbursement for
fines paid, intentional infliction of emotional harm or other
tort, or employment discrimination under any applicable federal,
state or local statute, provision, order or regulation including,
but not limited to, any claim under Title VII of the Civil Rights
Act ("Title VII"), the Federal Age Discrimination in Employment
Act ("ADEA") and any similar or analogous state statute excepting
only:
A. those obligations of Petrolite under that certain
Executive Agreement between Petrolite and the Executive dated
-------------------- (the "Agreement"), pursuant to which this
General Release is being executed and delivered;
B. any rights to indemnification the Executive may have
under applicable corporate law, the by-laws or certificate of
incorporation of any Released Party or as an insured under any
Director's and Officer's liability insurance policy now or
previously in force;
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C. any claims under any applicable workers' compensation
statute which arose prior to the date of the Executive's
termination from employment;
D. any claims for benefits under any employee benefit plan
of Petrolite (within the meaning of Section 3(3) of the Employee
Income Security Act of 1974, as amended); and
E. any claims under any stock option agreement to which
Petrolite and Executive are parties.
The Executive acknowledges and agrees that neither the
Agreement nor this General Release is to be construed in any way
as an admission of any liability whatsoever by any Released Party
under Title VII, ADEA or any other federal or state statute or
the principles of common law, any such liability having been
expressly denied.
The Executive further declares and represents that he/she
has carefully read and fully understands the terms of this
General Release and the Agreement, that he/she has been given not
less than forty-five (45) days to consider this General Release,
that he/she has been advised to seek, and has had the opportunity
to seek, the advice and assistance of counsel with regard to this
General Release and the Agreement, and that he/she knowingly and
voluntarily, of his/her own free will, without any duress, being
fully informed and after due deliberate thought and action,
accepts the terms of and signs the same as his/her own free act.
The Executive acknowledges and agrees that this General
Release shall become final and binding on the 8th day after it
has been executed and delivered to the Company.
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Executive
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STATE OF ---------- )
) SS.
COUNTY OF --------- )
On this ----- day of ------------, 1996, before me
personally appeared 1, to me known to be the person described
in and who executed the General Release and acknowledged that
he/she executed the same as his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the County and State aforesaid, the
day and year first above written.
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Notary Public
My Commission Expires:
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EXHIBIT B
GROSS-UP FORMULA
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A Gross-up Payment made pursuant to this Agreement shall be
calculated as follows:
A. The Gross-up Payment shall be the product of
(i) the amount of the additional Excise Taxes, any
interest, fines, penalties, expenses, and other costs
relating to such Excise Taxes incurred by the Executive,
and/or the amount of the reimbursement payment to Executive,
as the case may be, times (ii) a fraction the numerator of
which is 1, and the denominator of which is 1 minus the
combined total rates expressed as a fraction, determined in
accordance with paragraph B of this Exhibit B, of all
federal, state, local and other income and other taxes and
any Excise Taxes applicable to such Gross-up Payment.
B. For purposes of determining the denominator of the
fraction set forth in clause (ii) of paragraph A of this
Exhibit B, the rates of federal, state, local and other
income and other taxes and Excise Taxes shall be the rates
set forth in the table below:
Federal Income Tax The Executive's highest
marginal federal income tax
rate in effect for the
applicable year, including the
effective rate resulting from
the phaseout of itemized
deductions and the personal
exemption ("Federal Income Tax
Rate")
State and Local Income Tax The Executive's highest
marginal state and local
income tax rates in effect for
the applicable year
Excise Tax 20% (or if Section 4999 of the
Code is amended, the excise
tax rate in effect after the
amendment)
All Other Taxes Actual Net Tax Rate
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