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EXHIBIT 10.21
EXECUTIVE SEVERANCE AGREEMENT
EQUITY CORPORATION INTERNATIONAL
EFFECTIVE AUGUST 14, 1997
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TABLE OF CONTENTS
Article Section Page
1 Definitions 1
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2 Severance Benefits
2.1 Right to Severance Benefits 6
2.2 Description of Severance Benefits 7
2.3 Termination for Total and Permanent Disability 7
2.4 Termination for Retirement or Death 7
2.5 Termination for Cause or by the Executive Other 8
Than for Good Reason
2.6 Notice of Termination 8
3 Form and Timing of Severance Benefits
3.1 Form and Timing of Severance Benefits 8
3.2 Withholding of Taxes 8
4 Tax Indemnity
4.1 Limitation on Termination Payment 8
4.2 Subsequent Imposition of Excise Tax 10
5 The Company's Payment Obligation
5.1 Payment Obligations Absolute 10
5.2 Contractual Rights to Benefits 10
6 Term of Agreement
6.1 Term 11
7 Arbitration and Legal Fees
7.1 Arbitration 11
7.2 Payment of Expenses and Legal Fees 11
8 Successors
8.1 Company's Successors 11
8.2 Executive's Successors 12
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TABLE OF CONTENTS (CONT'D)
Article Section Page
9 Miscellaneous
9.1 Employment Status 12
9.2 Beneficiaries 12
9.3 Entire Agreement 12
9.4 Gender and Number 12
9.5 Severability 12
9.6 Modification 13
9.7 Applicable Law 13
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EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT is made and entered into as of 14th day of August, 1997, by and
between Equity Corporation International, a Delaware corporation (hereinafter
referred to as the "Company") and _________________________ (hereinafter
referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the Company
entering into severance agreements with certain key executives of the Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change-in-Control of the Company
arise, the Board believes it imperative that the Company and the Board should be
able to rely on the Executive to continue in the Executive's position and
receive and rely on the Executive's advice, if it requests it, as to the best
interests of the Company and its shareholders without concern that the Executive
might be distracted by the personal uncertainties and risks created by the
possibility of a Change-in-Control; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement shall be in addition to the provisions set forth in the Executive's
post-employment consulting agreement regarding the Executive's entitlement to
payments for the promise to render consulting services for a period of time
following termination of employment with the Company;
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of the Executive's advice and
counsel notwithstanding the possibility, threat, or occurrence of a
Change-in-Control of the Company, to induce the Executive to remain in the
employ of the Company, and for other good and valuable consideration, the
Company and the Executive agree as follows:
Article 1. Definitions
Whenever used in this Agreement, the following capitalized terms shall have the
meanings set forth below:
(a) "Agreement" means this Executive Severance Agreement.
(b) "Base Salary" means the salary of record paid to the Executive
as annual salary, excluding amounts received under incentive
or other bonus plans, whether or not deferred.
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(c) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 of the General Rules and Regulations under
the Exchange Act.
(d) "Beneficiary" means the persons or entities designated or
deemed designated by the Executive pursuant to Section 9.2.
(e) "Board" means the Board of Directors of the Company.
(f) "Cause" shall be determined by the Committee, in good faith,
and shall mean the occurrence of any one or more of the
following:
(i) The Executive's willful and continued failure to
substantially perform the Executive's duties
(other than any such failure resulting from the
Executive's Disability) after a written demand for
substantial performance has been delivered by the
Committee to the Executive that specifically
identifies the manner in which the Committee
believes that the Executive has not substantially
performed the Executive's duties, and the Executive
fails to remedy such failure within thirty (30)
calendar days after receiving such notice; or
(ii) The Executive's conviction (including a trial, plea
of guilty or plea of nolo contendere) for committing
an act of fraud, embezzlement, theft, or other act
constituting a felony; or
(iii) The Executive's willful and continued engagement in
gross misconduct or willful and continued violation
of a Company policy which is materially and
demonstrably injurious to the Company after a
written demand to cease such misconduct or violation
has been delivered by the Committee to the Executive
that specifically identifies the manner in which the
Committee believes that the Executive has violated
this Paragraph (iii), and the Executive fails to
cease such misconduct or violation and remedy any
injury suffered by the Company as a result thereof
within thirty (30) calendar days after receiving
such notice. However, no act or failure to act, on
the Executive's part shall be considered "willful"
unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that
the Executive's action or omission was in the best
interest of the Company.
(g) "Change-in-Control" of the Company shall be deemed to have
occurred as of the first day that any one or more of the
following events occurs on or following the effective date of
this Agreement:
(i) Any Person (other than those Persons in control of
the Company on the Effective Date of this Agreement,
a trustee or other fiduciary holding
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securities under an employee benefit plan of the
Company, or a corporation owned directly or
indirectly by the stockholders of the Company in
substantially the same proportions as their
ownership of stock of the Company) becomes the
Beneficial Owner, directly or indirectly, of
securities of the Company representing twenty
percent (20%) or more of the combined voting power
of the Company's then outstanding securities; or
(ii) During any period of two (2) consecutive years (not
including any period prior to the Effective Date of
this Agreement), individuals who were members of the
Board at the beginning of such period (and any new
Director whose election by the Company's stock
holders was approved by a vote of at least
two-thirds (2/3) of the Directors then still in
office who either were Directors at the beginning of
the period or whose election or nomination for
election was so approved) cease for any reason to
constitute a majority thereof; or
(iii) The stockholders of the Company approve: (A) a plan
of complete liquidation of the Company; (B) an
agreement for the sale or disposition of all or
substantially all the Company's assets; or (C) a
merger, consolidation, or reorganization of the
Company with or involving any other corporation,
other than a merger, consolidation, or
reorganization that would result in the voting
securities of the Company outstanding immediately
prior thereto continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity) at least
fifty percent (50%) of the combined voting power of
the securities of the Company (or such surviving
entity) outstanding immediately after such merger,
consolidation, or reorganization.
However, in no event shall a Change-in-Control be deemed to
have occurred, with respect to the Executive, if the Executive
is part of a purchasing group which consummates the
Change-in-Control transaction. The Executive shall be deemed
"part of a purchasing group" for purposes of the preceding
sentence if the Executive is an equity participant in the
purchasing company or group (except for: (i) passive ownership
of less than three percent (3%) of the stock of the purchasing
company; or (ii) ownership of equity participation in the
purchasing company or group which is otherwise not
significant, as determined prior to the Change-in-Control by
the Committee.
(h) "Code means the Internal Revenue Code of 1986, as amended.
(i) "Committee" means the Compensation Committee of the Board or
any other committee appointed by the Board to perform the
functions of the Compensation Committee.
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(j) "Company" means Equity Corporation International, a Delaware
corporation (including any and all subsidiaries), or any
successor thereto as provided in Article 8.
(k) "Disability" means:
(i) The mental or physical disability, either
occupational or non-occupational in cause, which
satisfies the definition of "total and permanent
disability" in the disability policy or plan provided
by the Company covering the Executive; or
(ii) If no such policy or plan is then covering the
Executive, a physical or mental infirmity which, as
determined by the Committee, in good faith, upon
receipt of and in reliance on sufficient competent
medical advice from one or more individuals, selected
by the Committee, who are qualified to give
professional medical advice, impairs the Executive's
ability to substantially perform the Executive's
duties for a period of at least one hundred eighty
(180) consecutive days.
(l) "Effective Date" means the date this Agreement is approved by
the Committee, or such other date as the Board shall designate
in its resolution approving this Agreement.
(m) "Effective Date of Termination" means the date on which a
Qualifying Termination occurs which causes the payment of
Severance Benefits.
(n) "Exchange Act" means the Securities Exchange Act of 1 934,
as amended.
(o) "Executive" means ________________________.
(p) "Good Reason" means any event or condition described in
Subsections (i) through (ix) below which occurs simultaneous
with or after a Change-in-Control:
(i) A change in the Executive's status, title, position
or responsibilities (including reporting
responsibilities) which, in the Executive's
reasonable judgment, represents an adverse change
from the Executive's status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Executive of any
duties or responsibilities which, in the Executive's
reasonable judgment, are inconsistent with the
Executive's status, title, position or
responsibilities; or any removal of the Executive
from or failure to reappoint or reelect the
Executive to any office or position held by the
Executive prior to such Change-in-Control, except in
connection with the termination of the Executive's
employment for Disability, Cause, as a
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result of the Executive's death or retirement or by
the Executive other than for Good Reason;
(ii) A reduction in the Executive's Base Salary or any
failure to pay the Executive any compensation or
benefits to which the Executive is entitled within
five (5) days of the date due;
(iii) A failure to increase the Executive's Base Salary at
least annually at a percentage of Base Salary no
less than the average percentage increase (other
than increases resulting from the Executive's
promotion) granted to the Executive during the three
(3) full years ended prior to a Change-in-Control
(or such lesser number of full years during which
the Executive was employed), unless such failure
occurs in connection with the Company's failure to
increase the employee's base salaries for the fiscal
year for which such failure occurs of the peer
executives of the Company and its affiliates,
including the peer executives of any company
acquiring control of the Company in such
Change-in-Control and its affiliates.
(iv) The Company's requiring the Executive to be based at
any place outside a 30-mile radius from the
Executive's current place of employment;
(v) The failure by the Company to (A) continue in effect
(without reduction in benefit level and/or reward
opportunities) any material compensation or employee
benefit plans in which the Executive was
participating immediately prior to the Effective
Date, unless a substitute or replacement plan has
been implemented which provides substantially
identical compensation and benefits to the Executive
or (B) provide the Executive with compensation and
benefits, in the aggregate, at least equal (in
terms) of benefit levels and/or reward opportunities
to those provided for under each other compensation
or employee benefit plan, program and practice as in
effect at any time within ninety (90) days preceding
the Effective Date or at any time thereafter;
(vi) The insolvency or the filing (by any party,
including the Company) of a petition for the
bankruptcy of the Company;
(vii) Any material breach by the Company of any provision
of this Agreement or any provision of any employment
agreement between the Executive and the Company;
(viii) Any purported termination of the Executive's
employment for Cause by the Company which is not for
Cause; or
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(ix) The failure of the Company to obtain an agreement,
satisfactory to the Executive, from any successor or
assign of the Company to assume and agree to perform
this Agreement.
Additionally, any event described in Subsections (i) through
(ix) above which occurs prior to a Change-in-Control, but
which the Executive reasonably demonstrates (A) was at the
request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a
Change-in-Control, or (B) otherwise arose in connection with,
or in anticipation of a Change-in-Control, shall constitute
Good Reason for purposes of this Agreement notwithstanding
that it occurred prior to the Change-in-Control.
(q) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a "group" as defined in Section
13(d).
(r) "Qualifying Termination" means the termination of the
Executive's employment with the Company for either of the
following reasons:
(i) The Executive resigns for Good Reason; or
(ii) The Company terminates the Executive for any reason
other than for Cause.
(s) "Retirement" means:
(i) The Executive's voluntary termination of employment
with the Company at or following "normal retirement
age" (as defined in the Company's retirement plan
covering the Executive) or,
(ii) If there is no such plan, the Executive's voluntary
termination of employment with the Company at or
following age 65.
(t) "Severance Benefits" means the compensation described in
Section 2.2.
Article 2. Severance Benefits
2.1. Right to Severance Benefits.
(a) The Executive shall be entitled to receive from the Company
the Severance Benefits described in Section 2.2 if there has
been a Change-in-Control of the Company and if, within
eighteen (18) calendar months thereafter, the Executive's
employment with the Company shall end by reason of a
Qualifying Termination.
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(b) The Executive shall not be entitled to receive such Severance
Benefits if the Executive is terminated for Cause, if the
Executive resigns other than for Good Reason, or if the
Executive's employment with the Company ends due to the
Executive's death, Retirement or Disability (refer to Sections
2.3 to 2.5 for a summary of severance compensation payable to
the Executive in connection with a termination of employment
for any such reason).
2.2 Description of Severance Benefits. If the Executive becomes entitled to
receive Severance Benefits, as provided in Sections 2.1, and subject to
the limits set forth in Article 4, the Company shall pay to the
Executive and provide the Executive with the following:
(a) An amount equal to three (3) times the highest rate of the
Executive's annual Base Salary in effect at any time up to and
including the Effective Date of Termination;
(b) An amount equal to the greater of: (i) the Executive's average
annual bonus earned over the last three (3) years; or (ii) the
Executive's target bonus established for the bonus plan year
in which the Executive's Effective Date of Termination occurs;
(c) An amount equal to the Executive's unpaid Base Salary and
accrued, unused vacation through the Effective Date of
Termination; and
(d) A continuation of any Company-provided or sponsored
healthcare-related benefits under which the Executive and/or
the Executive's family is covered as of the effective date of
the Change-in-Control. These benefits shall be provided by the
Company to the Executive immediately upon the Effective Date
of Termination and shall continue to be provided for eighteen
(18) months from the Effective Date of Termination; such
benefits shall be provided to the Executive at the same
premium cost and at the same coverage level as in effect as of
the Executive's Effective Date of Termination; and any such
benefit shall be discontinued prior to the end of the eighteen
(18) month period if the Executive receives a substantially
similar benefit from a subsequent employer, as determined by
the Compensation Committee in good faith.
2.3. Termination for Total and Permanent Disability. Following a
Change-in-Control of the Company, if the Executive's employment is
terminated due to Disability, the Executive shall receive the
Executive's Base Salary through the Effective Date of Termination, at
which point in time the Executive's compensation and benefits, if any,
shall be determined in accordance with the Company's retirement,
insurance, and other applicable plans and programs then in effect, and
the Company shall have no further obligations to the Executive under
this Agreement.
2.4. Termination for Retirement or Death. Following a Change-in-Control
of the Company, if the Executive's employment is terminated by reason
of the Executive's Retirement or death,
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the Company shall pay the Executive or the Executive's beneficiary(ies)
his full Base Salary and accrued, unused vacation through the Effective
Date of Termination, at the rate then in effect, plus all other amounts
to which the Executive or the Executive's beneficiary(ies) are entitled
to under any retirement, survivor's benefits, insurance, and other
applicable programs of the Company then in effect, and the Company
shall have no further obligations to the Executive and the Executive's
beneficiary(ies) under this Agreement.
2.5. Termination for Cause or by the Executive Other Than for Good Reason.
Following a Change-in-Control of the Company, if the Executive's
employment is terminated either: (i) by the Company for Cause; or (ii)
by the Executive for any reason other than Good Reason, the Company
shall pay the Executive his full Base Salary and accrued, unused
vacation through the Effective Date of Termination, at the rate then in
effect, plus all other amounts to which the Executive is entitled under
any compensation and benefit plans of the Company, at the time such
payments are due, and the Company shall have no further obligations to
the Executive under this Agreement.
2.6. Notice of Termination. Any termination by the Executive for
any reason or by the Company for Cause shall be communicated by Notice
of Termination to the other party. For purposes of this Agreement, a
"Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied
upon, and shall 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.
Article 3. Form and Timing of Severance Benefits
3.1. Form and Timing of Severance Benefits. The Severance Benefits described
in Sections 2.2(a), (b), and (c) shall be paid in cash to the Executive
in a single lump sum as soon as practicable following the Effective
Date of Termination, but in no event beyond thirty (30) days from such
date.
3.2. Withholding of Taxes. The Company shall withhold from any amounts
payable under this Agreement all Federal, state, city, or other taxes
as legally shall be required.
Article 4. Tax Indemnity
4.1. Limitation on Termination Payment.
(a) Determination of Termination Payment Limit. Notwithstanding
any other provision of this Agreement, if Severance Benefits
payable to the Executive under this Agreement or other
benefits payable under any other agreement or plan of the
Company (in the aggregate "Total Payments") would constitute
an "excess parachute payment," then the payments to be made to
the Executive under this Agreement shall be reduced as
provided in Section 4.1(b) such that the value of the
aggregate Total
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Payments that the Executive is entitled to receive shall be
the maximum amount which the Executive may receive without
becoming subject to the tax imposed by Section 4999 of the
Code. However, the payments to be made to the Executive under
this Agreement shall not be reduced if this results in the
Executive receiving a greater net benefit than the Executive
would have received had a reduction not occurred and an excise
tax been paid pursuant to Code Section 4999.
For purposes of this Agreement, the terms "excess parachute
payment" and "parachute payments" shall be valued as provided
in the Code and regulations.
(b) Procedure for Establishing Limitation on Termination Payment.
(i) Within sixty (60) days following delivery of the
Notice of Termination (as described in Section 2.6)
or notice by the Company to the Executive of its
belief that there is a payment or benefit due the
Executive which will result in an "excess parachute
payment" as defined in Section 28OG of the Code, the
Executive and the Company, at the Company's expense,
shall obtain the opinion of such legal counsel, which
need not be unqualified, as the Executive may choose,
which sets forth: (i) the amount of the Executive's
"annualized includible compensation for the base
period" (as defined in Code Section 28OG(d)(1)); (ii)
the present value of the Total Payments; and (iii)
the amount and present value of any "excess parachute
payment." The opinion of such legal counsel shall be
supported by the opinion of a certified public
accounting firm and, if necessary, a firm of
recognized executive compensation consultants. Such
opinion shall be binding upon the Company and the
Executive.
(ii) If such opinion determines that there would be an
"excess parachute payment" and the Severance Benefits
are to be reduced in accordance with Section 4.1(a),
the Severance Benefits hereunder or any other payment
determined by such counsel to be includible in Total
Payments shall be reduced or eliminated as specified
by the Executive in writing delivered to the Company
within thirty (30) days of the Executive's receipt of
such opinion, or, if the Executive fails to so notify
the Company, then as the Company shall reasonably
determine.
(iii) The provisions of this Section 4.1 (b), including the
calculations, notices, and opinion provided for
herein shall be based upon the conclusive presumption
that: (i) the compensation and benefits provided for
in Section 2.2, and (ii) any other compensation
earned prior to the Effective Date of Termination by
the Executive pursuant to the Company's compensation
programs (if such payments would have been made in
the future in any event, even though the
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timing of such payment is triggered by the
Change-in-Control), are reasonable.
4.2. Subsequent Imposition of Excise Tax. If, notwithstanding compliance
with the provisions of Sections 4.1(a), and 4.1(b), it is ultimately
determined by a court or pursuant to a final determination by the
Internal Revenue Service that any portion of the total payments is
considered to be a "parachute payment," subject to excise tax under
Section 4999 of the Code, which was not contemplated to be a "parachute
payment" at the time of payment (so as to accurately determine whether
a limitation should have been applied to the total payments to maximize
the net benefit to the Executive, as provided in Section 4.1 (b)), the
Executive shall be entitled to receive a lump sum cash payment
sufficient to place the Executive in the same net after-tax position,
computed by using the Executive's marginal total tax rate for the year
in which the payment contemplated under this Section 4.2 is made.
Article 5. The Company's Payment Obligation
5.1. Payment Obligations Absolute.
(i) The Company's obligation to pay or provide Severance Benefits
shall be absolute and unconditional, and shall not be affected
by any circumstances, including, without limitation, any
offset, counterclaim, recoupment, defense, or other right
which the Company may have against the Executive or anyone
else. All Severance Benefits paid or provided by the Company
shall be final, and the Company shall not seek to recover all
or any part of such Severance Benefit from the Executive or
from whomsoever may be entitled thereto, for any reasons
whatsoever except as may be consistent with Section 2.2(d);
and
(ii) The Executive shall not be obligated to seek other employment
in mitigation of the amounts payable or arrangements made
under any provision of this Agreement, and the obtaining of
any such other employment shall in no event effect any
reduction of the Company's obligations to make the payments
and arrangements required to be made under this Agreement,
except to the extent provided in Section 2.2(d).
5.2. Contractual Rights to Severance Benefits. This Agreement establishes
and vests in the Executive a contractual right to the Severance
Benefits to which the Executive is entitled hereunder. However, nothing
herein contained shall require or be deemed to require, or prohibit or
be deemed to prohibit, the Company to segregate, earmark, or otherwise
set aside any funds or other assets, in trust or otherwise, to provide
for any payments to be made or required hereunder.
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Article 6. Term of Agreement
6.1 Term. This Agreement will commence on the Effective Date and shall
continue in effect for eighteen (18) months, the last day of which
shall be the "Expiration Date." However, at the end of such eighteen
(18) month period and, if extended, at the end of each additional year
thereafter, the term of this Agreement shall be extended automatically
for one (1) additional year, unless the Committee delivers written
notice three (3) months prior to the end of such term, or extended
term, to the Executive, that the Agreement will not be extended. In
such case, the Agreement will terminate at the end of the term, or
extended term, then in progress.
However, in the event a Change-in-Control occurs during the original or
any extended term, this Agreement will remain in effect for the longer
of: (i) eighteen (18) months beyond the month in which such
Change-in-Control occurred; or (ii) until all obligations of the
Company hereunder have been fulfilled, and until all benefits required
hereunder have been paid to the Executive.
Article 7. Arbitration and Legal Fees
7.1. Arbitration. The Executive and the Company agree to have any dispute
or controversy arising under or in connection with this Agreement
settled by arbitration, conducted before an arbitrator or panel of
arbitrators selected in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
award of the arbitrator in any court having proper jurisdiction. The
Executive and the Company agree that any decision rendered in any such
arbitration proceeding shall be final and binding and that each of the
parties waives their rights to seek remedies in court, including the
right to jury trial.
7.2. Payment of Expenses and Legal Fees. All expenses of such arbitration,
including the fees and expenses of the counsel for the Executive and
the Company, shall be borne by the Company and/or the Executive in the
amount determined by the arbitrator.
Article 8. Successors
8.1 Company's Successors. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all the business and/or assets of the Company
or of any division or subsidiary thereof to expressly assume and agree
to perform the Company's obligations under this Agreement in the same
manner and to the same extent that the Company would be required to
perform them if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effective
date of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company or
successor entity in the same amount and on the same terms as the
Executive would be entitled to hereunder if the Executive had
terminated the Executive's employment with the Company
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voluntarily for Good Reason. Except for the purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed the Effective Date of Termination.
8.2 Executive's Successors. 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 should die while
any amount would still 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 the Executive's Beneficiary. If the Executive has not
named a Beneficiary, then such amounts shall be paid to the Executive's
devisee, legatee, or other designee, or if there is no such designee,
to the Executive's estate.
Article 9. Miscellaneous
9.1. Employment Status. The Executive and the Company acknowledge that,
except as may be provided under any other agreement between the
Executive and the Company, the employment of the Executive by the
Company is "at will," and, prior to the effective date of a
Change-in-Control, may be terminated by either the Executive or the
Company at any time. Upon a termination of the Executive's employment
prior to the effective date of a Change-in- Control, there shall be no
further rights under this Agreement; provided, however, that if such an
employment termination shall arise in connection with, or in
anticipation of, a Change-in-Control, then the Executive's rights shall
be the same as if the termination had occurred within eighteen (18)
months following a Change-in-Control.
9.2. Beneficiaries. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any
Severance Benefits owing to the Executive under this Agreement. Such
designation must be in the form of a signed writing acceptable to the
Committee. The Executive may make or change such designation at any
time.
9.3. Entire Agreement. This Agreement contains the entire understanding of
the Company and the Executive with respect to the subject matter
hereof. However, this Agreement shall be in addition to the provisions
set forth in the Executive's post-employment consulting agreement,
dated September 10, 1996, regarding the Executive's entitlement to
payments for the promise to render consulting services for a period of
time following termination of employment.
9.4. Gender and Number. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine, the plural
shall include the singular, and the singular shall include the plural.
9.5. Severability. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement,
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and the Agreement shall be construed and enforced as if the illegal or
invalid provision had not been included. Further, the captions of this
Agreement are not part of the provisions hereof and shall have no force
and effect.
9.6. Modification. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver, or discharge is agreed to
in writing and signed by the Executive and by authorized member of the
Committee, or by the respective parties' legal representatives and
successors.
9.7. Applicable Law. To the extent not preempted by the laws of the United
States, the laws of the state of Texas shall be the controlling law in
all matters relating to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this _____ day
of __________________, 1997.
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ATTEST: Equity Corporation International
(Corporate Seal)
By: By:
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