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Exhibit (10)(g)
AGREEMENT
AGREEMENT made and entered into the 17th day of August, 1998, by and
between THE XXXXXXXX AND XXXXXXXX COMPANY, a corporation existing under the laws
of the State of Ohio (hereinafter referred to as the "Employer"), and
(hereinafter referred to as "Employee")
WITNESSETH:
WHEREAS, Employee is currently an employee of the Employer; and
WHEREAS, the Employer considers Employee a key member of the management
team of the Employer and recognizes that a major change in the control of the
Employer would be of significant concern to Employee; and
WHEREAS, the parties hereto desire to set forth their mutual agreement
regarding the terms of Employee's employment under certain specified
circumstances in order to xxxxxx and encourage continued attention and
dedication to Employee's assigned duties in the event of such circumstances;
NOW, THEREFORE, in consideration of the foregoing premises, Employee's
continued employment for any period after execution of this Agreement, and the
mutual promises set forth herein, the parties hereby agree as follows:
1. DEFINITIONS
For purposes of this Agreement:
(a) "Base Compensation" shall mean the then-current annual base salary
(exclusive of Bonuses) of Employee, as the same may be fixed from time to time
by the Board of Directors or its Compensation Committee or, if applicable, by
the appropriate executive officer of Employer.
(b) "Bonuses" shall mean bonus payments earned by Employee under
Employer's Incentive Compensation Plans and under any future bonus or incentive
compensation plans of Employer for its executive officers in which Employee
participates.
(c) "Change in Control" shall mean the occurrence of any of the
following events:
(i) Any "person," as such term is used in Sections 13(d) and
14(d) of the
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Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
Xxxxxxx X. Xxxxx, Xx., his children or his grandchildren, Employer, any trustee
or other fiduciary holding securities under an employee benefit plan of
Employer, or any company owned, directly or indirectly, by the shareholders of
Employer in substantially the same proportions as their ownership of stock of
Employer), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of Employer
representing fifty percent (50%) or more of the combined voting power of
Employer's then outstanding securities;
(ii) during any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who
at the beginning of such period constitute the Board of Directors, any new
director (other than a director designated by a person who has entered into an
agreement with Employer to effect a transaction described in clause (i), (iii)
or (iv) of this Section whose election by the Board of Directors or nomination
for election by Employer's shareholders 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 was previously so approved)
cease for any reason to constitute at least a majority thereof;
(iii) the shareholders of Employer approve a merger or
consolidation of Employer with any other company, other than (1) a merger or
consolidation which would result in the voting securities of Employer
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting security of Employer or such surviving entity outstanding immediately
after such merger or consolidation or (2) a merger or consolidation effected to
implement a recapitalization of Employer (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than fifty percent (50%) of the
combined voting power of Employer's then outstanding securities; or
(iv) the shareholders of Employer approve a plan of
liquidation, dissolution or winding up of Xxxxxxxx or an agreement for the sale
or disposition by Employer of all or substantially all of Employer's assets.
(d) "Disability" shall mean the inability of Employee, because of any
mental or physical illness or incapacity, to perform substantially the duties of
his employment with the Employer as determined under the Employer's long-term
disability program.
(e) "Discharge For Cause" shall be construed to have occurred whenever
occasioned by reason of felonious acts on the part of Employee, actions by
Employee involving serious moral turpitude or his misconduct in such manner as
to bring substantial and material discredit upon Employer, following the giving
of thirty (30) days' written notice to Employee specifying the respect in which
Employer claims Employee has violated this provision and the failure, inability
or unwillingness of Employee to remedy the situation to the satisfaction of
Employer within said
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thirty-day period. In establishing whether a Discharge For Cause shall have
occurred, the standard for judgment shall be the level of conduct by Employee
and by other comparably situated executive officers prior to the alleged
improper activity of Employee for which the Discharge For Cause has been made.
(f) "Escrow Agreement" shall mean the agreement entered into
simultaneously herewith between Employer and Bank One, N.A., a copy of which is
attached hereto and made a part hereof as Exhibit A.
(g) "Escrow Agent" shall mean Bank One, N.A.
(h) "Escrow Amount" shall mean the amounts placed in escrow by Employer
pursuant to subsection (a) of Section 2 of this Agreement.
(i) "Escrow Funding Event" shall mean the occurrence of any of the
following events:
(i) Class A Common Shares of Employer have been acquired other
than directly from Employer in exchange for cash or property by any person
(other than Xxxxxxx X. Xxxxx, Xx., his children or his grandchildren, Employer,
any trustee or other fiduciary holding securities under an employee benefit plan
of Employer, or any company owned directly or indirectly by the shareholders of
Employer in substantially the same proportions as their ownership of the stock
of Employer) who either thereby becomes the owner of more than nine and one-half
percent (9.5%) of Employer's outstanding Class A Common Shares, or having
directly or indirectly become the owner of more than five percent (5%) of
Employer's Class A Common Shares either alone or in conjunction with another
person has expressed an intent to continue acquiring Employer's outstanding
Class A Common Shares so as to become thereby the owner of more than nine and
one-half percent (9.5%) of such stock either directly or indirectly;
(ii) Any person (other than Xxxxxxx X. Xxxxx, Xx., his
children or grandchildren, Employer any trustee or other fiduciary holding
securities under an employee benefit plan of Employer, or any company owned
directly or indirectly by the shareholders of Employer in substantially the same
proportions as their ownership of the stock of Employer) has made a tender offer
for, or a request for invitations for tenders of, Class A Common Shares of
Employer;
(iii) Any person forwards or causes to be forwarded to
shareholders of Employer proxy statement(s) in any period of twenty-four (24)
consecutive months, soliciting proxies, to elect to the Board of Directors of
Employer two (2) or more candidates who were not nominated as candidates in
proxy statements forwarded to shareholders during such period by the Board of
Directors of Employer; or
(iv) The Board of Directors of the Employer adopts a
resolution to the effect that,
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for purposes of this Agreement, an Escrow Funding Event has occurred.
2. PAYMENTS INTO ESCROW.
(a) Upon the occurrence of an Escrow Funding Event within five (5)
years after the date of this Agreement, Employer shall pay into an escrow
account at the Escrow Agent an amount equal to two and ninety-nine one
hundredths (2.99) times the sum of the (i) higher of Employee's annual Base
Compensation in effect immediately prior to the occurrence of the event or
circumstance upon which such termination of employment is based or in effect
immediately prior to the Change in Control, and (ii) the average of Employee's
Bonuses during the three (3) calendar years immediately preceding the year in
which the date of termination occurs. Subsequent to the delivery to the Escrow
Agent of the Escrow Amount, Employer shall, in the event that either Employee's
Base Compensation is increased (or decreased) or he receives a Bonus that
affects the amount described in this subsection, unless the Escrow Amount shall
theretofore have been released pursuant to subsection (b) of this Section,
recalculate the Escrow Amount as of the date such change in Base Compensation or
receipt of Bonus occurs, treating the Escrow Funding Event as having occurred on
such date. If the amount so calculated exceeds the fair market value of the
Escrow Amount, Employer shall promptly (and in no event later than seven (7)
days from such date) pay to the Escrow Agent an amount in cash (or marketable
securities or any combination thereof) equal to such excess. If the Escrow
Amount so calculated is less than the fair market value of the Escrow Amount
then held in the escrow account, the Escrow Agent, upon receipt of a written
request from Employer, shall distribute to Employer such difference in cash;
provided, however, that this sentence shall not apply after the occurrence of a
Change in Control. The Escrow Amount shall be governed by the terms and
conditions of this Agreement and the Escrow Agreement.
(b) Unless the parties otherwise agree, the Employer may withdraw the
Escrow Amount when and only when two (2) years have expired from the date of
deposit and no proper demand pursuant to subsection (b) (i) of Section 3 of this
Agreement has been made during that time, or when the conditions requiring the
deposit have ceased to exist for a period of ninety (90) days without a demand
right having been created, or when Employee's right to a payment under this
Agreement has been forfeited, whichever occurs first. If, before the expiration
of such periods or forfeiture, there shall occur another Escrow Funding Event,
the Employer will not be required to make an additional deposit, but the two (2)
year period shall then be measured from the date of the last such event.
Notwithstanding a deposit with the Escrow Agent pursuant to subsection (a) of
this Section, Employee shall continue to be entitled to receive all of the
normal and usual benefits from Employer until a termination of employment shall
occur.
(c) The Employer shall pay the charges of the Escrow Agent for its
services under the Escrow Agreement, and the Employer will be entitled to any
interest or other income arising from the date of the deposit of the Escrow
Amount until all payments have been made under the Escrow Agreement to Employee.
All interest or other income arising from the Escrow Amount deposited with the
Escrow Agent shall be paid monthly to Employer.
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(d) In the event that, following the creation of a demand right
pursuant to Section 3 of this Agreement, Employee incurs any costs or expenses,
including attorneys' fees, in the enforcement of rights under this Agreement or
under any plan for the benefit of employees of the Employer, including without
limitation the stock option plan, pension plans, payroll-based stock ownership
plan, tax deferred savings and protection plan, bonus arrangements, supplemental
pension plan, deferred compensation agreements, incentive compensation plans,
and life insurance and compensation program, then, unless the Employer or the
consolidated, surviving or transferee entity in the event of a consolidation,
merger or sale of assets, is wholly successful in defending against the
enforcement of such rights, the Employer, or such consolidated, surviving or
transferee entity, shall promptly pay to Employee all such costs and expenses.
3. EMPLOYMENT TERMS AND SEVERANCE BENEFITS AFTER CHANGE
IN CONTROL.
(a) After a Change in Control has occurred: (i) The Employer shall not
reduce Employee's Base Compensation below the amount of such Base Compensation
in effect immediately preceding the Change in Control without Employee's written
consent; (ii) The Employer shall continue to provide Employee with fringe
benefits (including bonuses, vacation, health and disability insurance, etc.) at
least equivalent to those of other similarly situated executive officers of the
Employer; (iii) Employee shall not be required by the Employer to perform duties
or services which differ significantly from those performed by him prior to the
Change in Control, or which are not ordinarily and generally performed by a
similarly situated executive of a corporation; (iv) The nature of the duties or
services which the Employer requires him to perform shall not necessitate
absence overnight from his place of residence on the effective date hereof,
because of travel involving the business affairs of the Employer for more than
ninety (90) days during any period of twelve (12) consecutive months.
(b) (i) If the Employer terminates Employee's employment or if Employee
terminates his employment with Employer for any of the reasons specified in
subsection (a) of this Section within the twenty-four (24) month period
following the date of a Change in Control, the Escrow Agent upon written demand
from Employee shall pay promptly to the Employee the Escrow Amount in one (1)
lump sum in cash.
(ii) Employee shall also be entitled to the following benefits
commencing as of the date of the payment of the Escrow Amount to Employee:
A. During the period expiring on the earlier of Employee
securing other employment or twenty-four (24) months from date of payment of the
Escrow Amount (or such longer period as required by law) to continued coverage
under the Employer's sponsored medical benefits program in existence on such
date of payment, or, if such continued coverage is barred, Employer shall
provide equivalent medical benefit coverage through the purchase of insurance or
otherwise.
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B. For purposes of determining Employee's benefits under
Employer's Supplemental Plan, Employee shall reeive credit toward his Years of
Service under the Supplemental Plan for the two (2) year period following his
termination of employment. In addition, with respect to the two (2) year period
following such termination of employment, Employee's Base Compensation shall be
deemed to be increased by the annual economic range adjustment for Employer's
salaried employees announced in October of each year (or, if there is no such
announced economic range adjustment in a given year, by an assumed five percent
(5%) increase for that year) in order to calculate his highest earnings during
five (5) consecutive years out of the last ten (10) years prior to retirement
under the Supplemental Plan.
C. Employee shall be reimbursed for up to $20,000 for
outplacement fees if he chooses to seek other employment following his
termination of employment with Employer.
(c) Notwithstanding anything to the contrary in this Section, Employee
shall not be entitled to any payments pursuant to subsection (b) (i) of this
Section if Employee dies prior to making a demand for payment pursuant to
subsection (b) (i) of this Section, or if the Employer terminates Employee's
employment because of a Discharge for Cause, because of Employee's Disability,
or if Employee voluntarily terminates his employment with the Employer for
reasons other than as set forth in subsection (a) of this Section.
(d) Employee shall not be required to mitigate damages with respect to
the amount of any payments provided for in subsection (b) of this Section by
seeking other employment or otherwise. Employee's sole remedy under this
Agreement for a breach by the Employer of subsection (a) of this Section shall
be to terminate employment and receive any payments to which he is entitled
under subsection (b) of this Section.
(e) Should Employee disagree that his termination was due to a
Discharge For Cause, the question shall, within thirty (30) days after the
termination of employment, be submitted to arbitration by three (3) arbitrators,
one of whom shall be selected by Employer, another of whom shall be selected by
Employee, and the third of whom shall be selected by the two arbitrators so
appointed. The arbitration shall take place in Dayton, Ohio in accordance with
the then rules of the American Arbitration Association. The decision of these
arbitrators on the question shall be final and conclusive upon Employer and upon
Employee and his wife or widow, personal representatives, designated
beneficiaries and heirs, and shall be enforceable in any court having competent
jurisdiction thereof. A termination which is eventually determined under
arbitration to have been a Discharge For Cause, or no arbitration having been
requested and the termination being one which Employer has determined was a
Discharge For Cause, shall extinguish any and all liability of Employer under
this Agreement from and after the date of the termination of employment.
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4. CONFIDENTIALITY; ENFORCEMENT.
(a) Employee shall keep secret and inviolate all knowledge or
information of a confidential nature (which is not then nor later, through no
breach of this Agreement, in the public domain), including all unpublished
matters related to, without limitation thereof, the business, properties,
accounts, books and records, research and development information, processes,
procedures, products, know-how, trade secrets, memoranda, devices, suppliers,
and customers of Employer which he may now know or hereafter come to know as a
result of his affiliation in business with Employer.
(b) All copyrights, improvements, discoveries and inventions and all
claims, interests and rights thereto relating to any part of the business of
Employer conceived, developed or made by Employee, either alone or with others,
during the period of his employment, and whether conceived, developed or made
during his regular working hours or at any other time during such period, shall
be and are the sole property of Employer and Employee hereby assigns to Employer
all right, title and interest in and to such copyrights, improvements,
discoveries and inventions. Further, Employee will, at any time in the future
upon Employer's request, execute specific assignments of any said copyrights,
improvements, discoveries and inventions as well as execute all documents and
perform all lawful acts which Employer deems necessary or advisable to vest full
ownership thereof in Employer, to register same in the name of Employer or its
designee or otherwise to provide legal protection for Employer's ownership
interests therein.
(c) Any violation of this Section 4 by Employee may be enforced by
Employer by specific performance or appropriate injunctive relief in any court
of competent jurisdiction. Any other dispute or controversy arising under this
Agreement shall be settled by arbitration in the manner set forth in subsection
(e) of Section 3 of this Agreement.
5. UNFUNDED AGREEMENT
The Employer's obligations under this Agreement are unfunded other than
from the date of deposit of the Escrow Amount, but the Employer reserves the
right to provide for its liability under this Agreement in any manner it deems
advisable, including the purchasing of such assets as it may deem necessary or
proper. Any asset so purchased by the Employer shall be the sole property of the
Employer and shall not be deemed to provide funding of the Employer's
obligations under this Agreement. Any other provision in this Agreement to the
contrary notwithstanding, Employee shall be only an unsecured general creditor
of the Employer with respect to all payments to be made under the terms of this
Agreement and shall have no claim, equity, interest, or right in or to any
specific assets or funds of the Employer as security for said payments other
than the Escrow Amount.
6. NON-ASSIGNABLE RIGHTS
Employee shall not have the right to anticipate or commute with any
third party, or to sell, assign, transfer, or otherwise alienate or convey the
right to receive any payments hereunder, whether by his voluntary or involuntary
act, or by operation of law and, in particular, that any
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payments due hereunder shall not be subject to attachment or garnishment or any
other legal proceedings by any creditor, or be in any way responsible for the
debts or liabilities of Employee. Should any attempt be made to reach any
payments hereunder by other than Employee, the Escrow Agent shall make each
payment as it becomes due to such person or persons, for the sole benefit of
Employee as the Escrow Agent may deem expedient.
7. FACILITY OF PAYMENT; LIMITATION
In the event of a Disability of Employee after Employee has made demand
hereunder, such payments as may thereafter be due shall be paid to such person
or persons for the benefit of Employee as the Escrow Agent may deem proper after
reasonable investigation. In the event of Employee's death after he has made
demand, the Escrow Agent shall pay such amounts as thereafter are due to such
beneficiary or beneficiaries as Employee shall have designated in writing on
Exhibit B attached hereto and made a part hereof, or failing such writing, to
his estate. No liability shall accrue to the Employer or Escrow Agent for any
alleged payment to an improper person or representative if so made after such
reasonable investigation and the Employer and Escrow Agent shall have no
responsibility to see to the proper application of such payments.
Notwithstanding any other provisions of this Agreement, in the event
that any payment or benefit received or to be received by Employee in connection
with a Change in Control or the termination of Employee's employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with Employer, any person whose actions result in a Change in Control
or any person affiliated with Employer or such person)(all such payments and
benefits, including the Escrow Amount, being hereinafter called "Total
Payments") would be subject (in whole or part), to an excise tax pursuant to
Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") (such tax hereinafter referred to as the "Excise Tax"), then the Escrow
Amount shall be reduced to the extent necessary so that no portion of the Total
Payments is subject to Excise Tax (after taking into account any reduction in
the Total Payments provided by reason of Section 280G of the Code in such other
plan, arrangement or agreement) if (A) the net amount of such Total Payments, as
so reduced, (and after deduction of the net amount of federal, state and local
income tax on such Total Payments), is greater than (B) the excess of (i) the
net amount of such Total Payments, without reduction (but after deduction of the
net amount of federal, state and local income tax on such Total Payments), over
(ii) the amount of Excise Tax to which Employee would be subject in respect of
such Total Payments. For purposes of determining whether and the extent to which
the Total Payments will be subject to the Excise Tax, (i) no portion of the
Total Payments the receipt or enjoyment of which Employee shall have effectively
waived in writing prior to the date of this termination of employment shall be
taken into account, (ii) no portion of the Total Payments shall be taken into
account which in the opinion of tax counsel selected by Employer does not
constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the
Code, (including by reason of Section 280G(b)(4)(A) of the Code) and, in
calculating the Excise Tax, no portion of such Total Payment shall be taken into
account which constitutes reasonable compensation for services actually
rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess
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of the base amount as defined in Section 280G(b)(3) of the Code allowable to
such reasonable compensation, and (iii) the value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by Employer in accordance with the principles of Sections 280G(d)(3) and (4) of
the Code. Prior to the fifth day following the date of Employee's termination of
employment, Employer shall provide Employee with its calculation of the amounts
referred to in this paragraph and such supporting materials as are reasonably
necessary for Employee to evaluate Employer's calculations. If Employee objects
to Employer's calculations, he shall notify Employer of his objections prior to
the initial payment date set forth in Section 3 hereof, and Employer shall pay
to Employee such portion of the Total Payments (up to one hundred percent (100%)
thereof) as Employee determines is necessary to result in Employee receiving the
greater of clauses (A) and (B) of this paragraph.
8. RESPONSIBILITY FOR LEGAL EFFECT
Neither party hereto makes any representations or warranties, express
or implied, or assumes any responsibility concerning the legal, tax, or other
implications or effects of this Agreement. The Employer and the Escrow Agent
shall take all actions required by law with respect to any payments due
hereunder including but not limited to, withholding of tax from such payments.
9. INDEPENDENCE OF AGREEMENT; EMPLOYMENT TERMINATION
This Agreement shall be independent of any other contract or agreement
that may exist between the parties hereto from time to time. This Agreement
shall not restrict the Employer's rights to terminate Employee's employment with
the Employer nor Employee's rights to terminate employment with the Employer;
provided, however, that the Employer shall not terminate Employee's employment
prior to a Change in Control solely to avoid its obligations under this
Agreement. No merger or consolidation with any other entity, or sale of all or
substantially all of Employer's assets constituting an Escrow Funding Event, or
thereafter a Change in Control shall occur without assumption of the Agreement
by the purchaser or payment by purchaser or Employer of the sums set forth in
subsection (a) of Section 2 of this Agreement.
10. SECTION HEADINGS
The Section headings used in this Agreement are for convenience of
reference only and shall not be considered in construing this Agreement.
11. NOTICES
Any notices required o r permitted to be given under this Agreement
shall be sufficient if in writing and if personally delivered or sent by
certified or registered mail to his residence as last shown on the employment
records of the Employer in the case of Employee, or to the corporate
headquarters to the attention of the President in the case of the Employer.
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12. NON-WAIVER
The waiver by the Employer or Employee of a breach of any provision of
this Agreement by Employee or the Employer shall not operate or be construed as
a waiver of any subsequent breach by Employee or the Employer of the same or any
other provision hereof.
13. ENTIRE AGREEMENT; AMENDMENT
This Agreement represents the entire understanding of the parties with
respect to the subject matter hereof and supersedes all previous understandings,
written or oral. Any amendment to this Agreement shall be executed in writing
with the same formality as this Agreement.
14. BINDING EFFECT
This Agreement shall be binding upon Employee and the Employee's heirs,
executors, administrators, successors and assigns and upon the Employer and its
successors and assigns.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the year
and date first hereinabove written.
THE XXXXXXXX AND XXXXXXXX COMPANY
By
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Xxxxx X. Xxxxxx
Chairman of the Board,
President and Chief Executive Officer
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Exhibit A
ESCROW AGREEMENT
This Escrow Agreement made and entered into as of this 17th day of
August, 1998, by and between THE XXXXXXXX AND XXXXXXXX COMPANY, an Ohio
corporation (hereinafter referred to as "XXXXXXXX") and BANK ONE, N.A.
(hereinafter referred to as the "ESCROW AGENT"),
WITNESSETH:
WHEREAS, XXXXXXXX, has adopted a policy of providing termination pay
protection for certain of its key management personnel under conditions set
forth in an agreement dated August 17, 1998 (hereinafter referred to as the
"Agreement"); and
WHEREAS, XXXXXXXX has identified (hereinafter referred to
as "Employee") as key management personnel and has entered into the Agreement
with him; and
WHEREAS, the required protective payments under the Agreement are to be
paid to an escrow account at the ESCROW AGENT;
NOW, THEREFORE, in consideration of the covenants and agreements
contained in this ESCROW AGREEMENT, the parties hereby do agree as follows:
1. Acceptance of Escrow. The ESCROW AGENT shall serve as ESCROW AGENT
in accordance with the provisions of this ESCROW AGREEMENT, and the duties of
the ESCROW AGENT shall be solely those imposed by this ESCROW AGREEMENT.
2. Terms. The ESCROW AGENT shall receive, hold and disburse funds as
ESCROW AGENT in accordance with the Agreement, in the form attached hereto as
Exhibit A and made a part hereof. The ESCROW AGENT acknowledges that it has
reviewed and is familiar with the Agreement and shall be bound by the
obligations, terms and conditions therein relating to the ESCROW AGENT and its
duties.
However, the ESCROW AGENT is not a party to or bound by the Agreement,
except as specifically provided for therein and as provided in Sections 2, 4, 6,
7 and 8 of this ESCROW AGREEMENT. The ESCROW AGENT shall be liable for only such
funds and items as are actually deposited and received by it for the purposes of
said escrow.
3. Indemnification. So long as the ESCROW AGENT shall follow the terms
of this ESCROW AGREEMENT and any instructions issued hereunder in good faith,
relying upon documents which it believes to be genuine and properly signed and
executed, it shall be held free, clear and harmless and shall incur no liability
hereunder. XXXXXXXX shall indemnify and hold the ESCROW AGENT harmless from any
loss, liability, cost, or expense, including
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reasonable legal fees, which may arise or be incurred by reason of this ESCROW
AGREEMENT or the ESCROW AGENT's performance in good faith of any duty or
obligation hereunder.
The ESCROW AGENT shall not be liable for any error of judgment or for
any act done or omitted by it in good faith, or for anything which it may in
good faith do or refrain from doing in connection with said escrow; nor will any
liability be incurred by the ESCROW AGENT if, in the event of any dispute or
question as to the construction of this ESCROW AGREEMENT or any demand or notice
hereunder, the ESCROW AGENT acts in accordance with the opinion of its legal
counsel.
4. Investments by ESCROW AGENT; Income. The ESCROW AGENT shall invest
escrow funds in federally-insured interest bearing accounts selected by the
ESCROW AGENT or in any one or more of the following investments, selected by the
ESCROW AGENT:
(a) Certificates of Deposit of United States commercial banks
holding membership in the Federal Reserve System. Such U.S.
banks shall have minimum total assets of $1,000,000,000 and
shall not be currently listed on any publicly-disclosed report
of U.S. banks having financial problems warranting close
monitoring by the Federal Reserve Board.
(b) Euro-dollar Certificates of Deposit issued by the twenty-five
(25) largest United States commercial banks, which banks shall
have minimum total assets of $1,000,000,000 and shall not be
currently listed on any publicly-disclosed report of U.S.
banks having financial problems warranting close monitoring by
the Federal Reserve Board.
(c) Bankers Acceptances of United States commercial banks holding
membership in the Federal Reserve System. Such U.S. banks
shall have minimum total assets of $1,000,000,000 and shall
not be currently listed on any publicly-disclosed report of
U.S. banks having financial problems warranting close
monitoring by the Federal Reserve Board.
(d) United States Treasury Bills.
(e) United States Treasury Notes.
(f) United States Government Guaranteed "Project Notes" and/or
Tax-Exempt Notes rated MIG 1 by Xxxxx'x rating agency.
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(g) Debt instruments issued by the following five United States
Government agencies:
Federal Intermediate Credit Banks
Banks for Cooperatives
Federal Land Banks
Federal Home Loan Banks
Federal National Mortgage Association
(h) Commercial Paper rated Prime-1 by Xxxxx'x rating agency or
rated A-1 by Standard & Poors rating agency.
In addition, with respect to any corporation's commercial paper being purchased,
such corporation's long-term debt, if any, must be rated either A by Xxxxx'x
rating agency or A by Standard & Poors rating agency.
The total investments in the above-described approved Certificates of Deposit,
Bankers Acceptances, Commercial Paper, and/or Tax-Exempt Notes shall be limited
to a maximum of $1,000,000 at any one time in any one single bank, corporation,
state and/or municipality.
With respect to funds deposited in escrow by XXXXXXXX pursuant to the
terms of the Agreement, principal shall be used only for the payments to the
Employee. Any and all income on invested funds shall be paid to XXXXXXXX in
accordance with subsection (c) of Section 2 of the Agreement. Fees of the Escrow
Agent shall be paid by XXXXXXXX in accordance with subsection (c) of Section 2
of the Agreement.
With respect to funds deposited pursuant to the Agreement, the ESCROW
AGENT shall be authorized to invest such funds. The ESCROW AGENT will maintain
such liquidity in the investments as will permit them to be cashed when
necessary to fund the required distributions to Employee.
5. Termination. This ESCROW AGREEMENT and all obligations of the ESCROW
AGENT shall terminate upon satisfaction by the ESCROW AGENT of all of its
obligations under this ESCROW AGREEMENT and the Agreement.
6. Adverse Claims. ESCROW AGENT shall make delivery or disbursement of
the funds deposited hereunder in accordance with the terms of the ESCROW
AGREEMENT and the Agreement, regardless of any disagreement or the presentation
of any adverse claims or demands of any person, unless such person shall have
obtained an injunction from a court having proper jurisdiction, enjoining ESCROW
AGENT from making such delivery or disbursement. ESCROW AGENT shall not become
liable to XXXXXXXX or to any other person, for or because of such delivery or
disbursement of such funds, even with knowledge of a disagreement or adverse
claim or demand.
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7. Demands. Except in cases where demand or notice by a single party is
specifically provided for in this ESCROW AGREEMENT or in the Agreement, the
ESCROW AGENT shall not be bound to recognize any notice, demand or change of
instructions as having any effect on this escrow unless given in writing and
signed by all parties considered by the ESCROW AGENT to be affected thereby.
8. Notices. Any notice required or permitted to be given hereunder
shall be given in writing and shall be sufficiently delivered if sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
_______________________,Trust Officer
Trust Division
Bank One, NA
Kettering Tower
Xxxxxx, Xxxx 00000
The Xxxxxxxx and Xxxxxxxx Company
000 X. Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attn: Chief Financial Officer
Should the address of any party identified above change for the purposes herein,
such party shall give written notice of the new address to the other parties
identified above.
All notice hereunder to the ESCROW AGENT shall be given in writing to
an officer of the ESCROW AGENT. Unless written notice shall so be given, the
ESCROW AGENT shall not be required to take or be bound by said notice or to take
action concerning such notice. If written notice be properly given and the
ESCROW AGENT is required upon receipt thereof to take any action hereunder and
such action involves any expense or liability, the ESCROW AGENT shall not be
required to take any such action unless it is indemnified against such expense
or liability in a manner reasonably satisfactory to the ESCROW AGENT. At the
time of depositing funds into escrow on behalf of Employee, XXXXXXXX shall
deliver to the ESCROW AGENT a written notice setting forth such person's name
and address, and social security number identifying the amounts being deposited
on such person's behalf, and the conditions of the Agreement, which have been
met and which, therefore, require that such deposit be made.
9. Record Keeping. The ESCROW AGENT shall maintain records showing the
amount and date of all deposits made by XXXXXXXX for the benefit of Employee and
the amount and date of all disbursements made to Employee, his heirs, successors
and assigns. XXXXXXXX shall be given access to said records at reasonable times
upon request.
10. Escrow Fee. XXXXXXXX shall pay to the ESCROW AGENT for its services
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hereunder an escrow fee based upon the then-current schedule of charges for such
services promulgated by the ESCROW AGENT and shall pay additional reasonable
compensation for any further or extraordinary service which the ESCROW AGENT may
be required to render pursuant to the terms of this ESCROW AGREEMENT.
11. Binding Effect. This ESCROW AGREEMENT shall be binding upon and
inure to the heirs, executors, administrators, personnel representatives,
successors and assigns of all parties hereto.
12. Miscellaneous. Employee is acknowledged to be third party
beneficiary upon the deposit of any amounts under this ESCROW AGREEMENT for his
benefit. This ESCROW AGREEMENT may be modified or amended only by a writing
signed (i) by all parties hereto, (ii) by the third party beneficiary and (iii)
by any other person the ESCROW AGENT considers to be affected by said
modification or amendment. This ESCROW AGREEMENT shall be construed and enforced
in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have set their respective hands
the year and date first hereinabove written.
THE XXXXXXXX AND XXXXXXXX COMPANY
By
----------------------------------
"XXXXXXXX"
BANK ONE, N.A.
By
----------------------------------
"ESCROW AGENT"
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Exhibit B
BENEFICIARY DESIGNATION
TO: The President of The Xxxxxxxx and Xxxxxxxx Company
Pursuant to the Agreement dated August 17, 1998 the undersigned hereby
designates the following beneficiary (beneficiaries) to receive any benefits
which may be payable under said Agreement subsequent to the undersigned's death:
(1)_____________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(2) If the beneficiary (beneficiaries) named in (1) above is not living or is no
longer in existence, as the case may be, then to:
________________________________________________________________________________
________________________________________________________________________________
This Beneficiary Designation revokes all prior designations made by the
undersigned and is subject to all the terms of the Agreement.
Dated: August 17, 1998 __________________________
