CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT dated as of December ___, 1997, between
HUSSMANN INTERNATIONAL, INC., a Delaware corporation (the "Company"), and
________________________________________ (the "Executive").
WHEREAS, the Company's Board of Directors has determined that, in light of
the importance of the Executive's continued services to the stability and
continuity of management of the Company and its subsidiaries, it is appropriate
and in the best interests of the Company and of its shareholders to reinforce
and encourage the Executive's continued disinterested attention and undistracted
dedication to his duties in the potentially disturbing circumstances of a
possible change in control of the Company by providing some degree of personal
financial security;
WHEREAS, the Company is currently a subsidiary of Xxxxxxx Corporation
("Xxxxxxx");
WHEREAS, on December 31, 1997, Xxxxxxx intends to distribute to its
shareholders all of the issued and outstanding shares of the Company's common
stock (such date, or any subsequent date on which such distribution shall
finally occur is hereinafter referred to as the "Effective Date");
WHEREAS, in order to induce the Executive to remain in the employ of the
Company or a subsidiary of the Company (a "Subsidiary"), the Company's Board of
Directors has determined that it is desirable to pay the Executive the severance
compensation set forth below if the Executive's employment with the Company or a
Subsidiary terminates in one of the circumstances described below following a
Change in Control (as defined below); and
WHEREAS, Xxxxxxx and/or a Subsidiary have previously entered into Severance
Compensation and Change in Control Agreements with certain executive officers of
the Company and its Subsidiaries, and this Agreement shall, as of the Effective
Date, replace in its entirety any and all such prior Agreements ("Prior
Agreements") to which the Executive is a party;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the Company and the Executive agree as follows:
1. TERM OF AGREEMENT. (a) The term of this Agreement shall commence on
the Effective Date and shall terminate, except to the extent that any obligation
of the Company hereunder remains unpaid as of such time, on the earlier to occur
of the date on which the Executive reaches age 65 and the third anniversary of
the Effective Date, subject to extension as provided in Section l(b) below;
provided, however, that this Agreement shall continue in effect until the
earlier to occur of the date on which the Executive reaches age 65 and the date
three years beyond the initial or any extended date of termination of this
Agreement if a Change in Control shall have occurred prior to such date of
termination of this Agreement (and shall continue for such additional period as
any obligation of the Company under this Agreement shall remain unpaid).
(b) Commencing on the date after the Effective Date and continuing on each
date thereafter (each such date being hereinafter referred to as a "Renewal
Date"), the term of this
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Agreement shall be automatically extended so as to terminate three years
thereafter, unless at least 60 days prior to a specified Renewal Date the
Company shall give written notice to the Executive that the term of this
Agreement shall not be so extended.
2. CHANGE IN CONTROL. No compensation shall be payable under this
Agreement unless and until (a) there shall have been a Change in Control while
the Executive is still an employee of the Company or a Subsidiary, and (b) the
Executive's employment by the Company or a Subsidiary thereafter shall have been
terminated in accordance with Section 3 of this Agreement.
For purposes of this Agreement, a "Change in Control" shall mean:
(i) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of beneficial ownership within the meaning of Rule
13d-3 promulgated under the Exchange Act, of 25% or more of either (A)
the then outstanding shares of common stock of the Company (the
"Outstanding Common Stock") or (B) the combined voting power of the
then outstanding securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Voting Securities");
excluding, however, the following: (1) any acquisition directly from
the Company (excluding any acquisition resulting from the exercise of
an exercise, conversion or exchange privilege unless the security
being so exercised, converted or exchanged was acquired directly from
the Company), (2) any acquisition by the Company, (3) any acquisition
by an employee benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the Company or (4) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (A), (B) and (C) of clause (iii) in this
definition of Change in Control;
(ii) individuals who, as of the Effective Date, constitute the Board
of Directors of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of such Board; provided that
any individual who becomes a director of the Company subsequent to the
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Effective Date whose election, or nomination for election by the
Company's shareholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board shall be
deemed a member of the Incumbent Board; and provided further, that any
individual who was initially elected as a director of the Company as a
result of an actual or threatened election contest, as such terms are
used in Rule l4a-11 of Regulation 14A promulgated under the Exchange
Act, or any other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board shall not
be deemed a member of the Incumbent Board;
(iii) the consummation of a reorganization, merger or consolidation
of the Company or sale or other disposition of all or substantially
all of the assets of the Company (a "Corporate Transaction");
excluding, however, a Corporate Transaction pursuant to which (A) all
or substantially all of the individuals or entities who are the
beneficial owners, respectively, of the Outstanding Common Stock and
the Outstanding Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than
66-2/3% of, respectively, the outstanding shares of common stock, and
the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or indirectly) in
substantially the same proportions relative to each other as their
ownership, immediately prior to such Corporate Transaction, of the
Outstanding Common Stock and the Outstanding Voting Securities, as the
case may be, (B) no Person (other than: the Company; any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company; the corporation
resulting from such Corporate Transaction; and any Person which
beneficially owned, immediately prior to such Corporate Transaction,
directly or indirectly, 25% or more of the Outstanding Common Stock or
the Outstanding Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 25% or more of,
respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined
voting power of the outstanding securities of such corporation
entitled to vote generally in the election of directors and (C)
individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(iv) the consummation of a plan of complete liquidation or
dissolution of the Company.
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3. TERMINATION FOLLOWING CHANGE IN CONTROL. (a) If a Change in Control
shall have occurred while the Executive is still an employee of the Company or a
Subsidiary, the Executive shall be entitled to the compensation provided in
Section 4 of this Agreement upon the subsequent termination of the Executive's
employment with the Company or Subsidiary within three years of the date upon
which the Change in Control shall have occurred, unless such termination is as a
result of (i) the Executive's death, (ii) the Executive's Disability (as defined
in Section 3(b) below), (iii) the Executive's Retirement (as defined in Section
3(c) below), (iv) the Executive's termination for Cause (as defined in Section
3(d) below), or (v) the Executive's decision to terminate employment other than
for Good Reason (as defined in Section 3(e) below). Notwithstanding anything to
the contrary in this Agreement, if a Change in Control occurs and if the
Executive's employment with the Company or a Subsidiary was terminated prior to
the date on which the Change in Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the
request of a third party who had taken steps reasonably calculated to effect the
Change in Control, or (ii) otherwise arose in connection with or anticipation of
the Change in Control, then for all purposes of this Agreement, the termination
of the Executive's employment shall be deemed to have occurred immediately
following the Change in Control.
(b) DISABILITY. If, as a result of the Executive's incapacity due to a
medically determinable physical or mental illness which can be expected to be
permanent or of indefinite duration (as certified in writing by a physician
selected by the Company and reasonably acceptable to the Executive), the
Executive
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shall qualify for benefits under the long-term disability plan of the Company
or a Subsidiary and shall have been absent from his duties with the Company
or a Subsidiary on a full-time basis for a continuous period of six months
commencing with the date of the Change in Control or the first day of such
absence (whichever is later) the Company or such Subsidiary may terminate the
Executive's employment for "Disability" without the Executive being entitled
to the compensation provided in Section 4.
(c) RETIREMENT. The term "Retirement" as used in this Agreement shall
mean termination by the Company or a Subsidiary or the Executive of the
Executive's employment based on the Executive having reached age 65 without the
Executive being entitled to the compensation provided in Section 4. Termination
based on "Retirement" shall not include, for purposes of this Agreement, the
Executive's taking of early retirement by reason of a termination by the
Executive of his employment for Good Reason.
(d) CAUSE. The Company or a Subsidiary may terminate the Executive's
employment for Cause without the Executive being entitled to the compensation
provided in Section 4. For purposes of this Agreement, the Company or Subsidiary
shall have "Cause" to terminate the Executive's employment ONLY on the basis of
(i) the Executive's wilful and continued failure substantially to perform his
duties with the Company or Subsidiary (other than any such failure resulting
from his incapacity due to physical or mental illness or any such failure
resulting from the Executive's termination for Good Reason), after a written
demand for substantial performance is delivered to the Executive by the Chief
Executive Officer (or if the Executive is Chief Executive Officer, by the
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Board of Directors) which specifically identifies the manner in which the
Chief Executive Officer (or the Board of Directors if the Executive is Chief
Executive Officer) believes that the Executive has not substantially
performed his duties, or (ii) the Executive's wilful engagement in gross
conduct materially and demonstrably injurious to the Company or a Subsidiary.
For purposes of this subsection, no act or failure to act on the Executive's
part shall be considered "wilful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company or a Subsidiary. The
Executive shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Executive a written statement of
the Chief Executive Officer (or if the Executive is Chief Executive officer,
a copy of a resolution duly adopted by the affirmative vote of not less than
two-thirds of the entire membership of the Board of Directors at a duly
convened meeting of the Board of Directors), finding that in the good faith
opinion of the Chief Executive Officer (or the Board of Directors if the
Executive is Chief Executive Officer) the Executive was guilty of conduct set
forth in clause (i) or (ii) of the second sentence of this Section 3(d) and
specifying the particulars thereof in detail.
(e) GOOD REASON. The Executive may terminate the Executive's employment
with the Company or a Subsidiary for Good Reason within three years after a
Change in Control and during the term of this Agreement and become entitled to
the compensation provided in Section 4. For purposes of this Agreement, "Good
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Reason" shall mean any of the following events, unless it occurs with the
Executive's express prior written consent:
(i) the assignment to the Executive by the Company or a
Subsidiary of any duties inconsistent with, or a diminution of, the
Executive's position, duties, titles, offices, responsibilities or
status with the Company or a Subsidiary immediately prior to a Change
in Control, or any removal of the Executive from or any failure to
reelect the Executive to any of such positions, except in connection
with the termination of the Executive's employment for Disability,
Retirement or Cause or as a result of the Executive's death or by the
Executive other than for Good Reason;
(ii) a reduction by the Company or a Subsidiary in the
Executive's base salary as in effect on the date hereof or as the same
may be increased from time to time during the term of this Agreement
or the Company's or Subsidiary's failure to increase (within 15 months
of the Executive's last increase in base salary) the Executive's base
salary after a Change in Control in an amount which is substantially
similar, on a percentage basis, to the average percentage increase in
base salary for all officers of the Company or the Subsidiary effected
during the preceding 12 months, other than a reduction of the
Executive's base salary pursuant to the terms of the short-term or
long-term disability plans of the Company or a Subsidiary during a
period in which the Executive is disabled (within the meaning of such
plan or plans) and qualifies for benefits under such plan or plans;
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(iii) any failure by the Company or a Subsidiary to continue in
effect any benefit plan or arrangement (including, without limitation,
any pension or retirement plan, employee stock ownership plan, group
life insurance plan, medical, dental, accident and disability plans
and educational assistance reimbursement plan) in which the Executive
is participating at the time of a Change in Control (or to substitute
and continue other plans providing the Executive with substantially
similar benefits) (hereinafter referred to as "Benefit Plans"), the
taking of any action by the Company or a Subsidiary which would
adversely affect the Executive's participation in or materially reduce
the Executive's benefits under any such Benefit Plan or deprive the
Executive of any material fringe benefit enjoyed by the Executive at
the time of a Change in Control, or the failure by the Company or
Subsidiary to provide the Executive with the number of paid vacation
days to which the Executive is entitled in accordance with the
vacation policies in effect at the time of a Change in Control;
(iv) any failure by the Company or a Subsidiary to continue in
effect any incentive plan or arrangement (including, without
limitation, the Company's annual bonus and contingent bonus
arrangements and credits and the right to receive performance awards
and similar incentive compensation benefits) in which the Executive is
participating at the time of a Change in Control (or to substitute and
continue other plans or arrangements providing the
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Executive with substantially similar benefits) (hereinafter referred to
as "Incentive Plans") or the taking of any action by the Company or a
Subsidiary which would adversely affect the Executive's participation in
any such Incentive Plan or reduce the Executive's benefits under any
such Incentive Plan in an amount which is not substantially similar, on
a percentage basis, to the average percentage reduction of benefits
under any such Incentive Plan effected during the preceding 12 months
for all officers of the Company or a Subsidiary participating in any
such Incentive Plan;
(v) any failure by the Company or a Subsidiary to continue in
effect any plan or arrangement to receive securities of the Company or
awards the value of which is derived from securities of the Company
(including, without limitation, the Company's Stock Incentive Plan and
any other plan or arrangement to receive and exercise stock options,
stock appreciation rights, restricted stock, phantom stock or grants
thereof or to acquire stock or other securities of the Company) in
which the Executive is participating at the time of a Change in
Control (or to substitute and continue plans or arrangements providing
the Executive with substantially similar benefits) (hereinafter
referred to as "Securities Plans") or the taking of any action by the
Company or a Subsidiary which would adversely affect the Executive's
participation in or materially reduce the Executive's benefits under
any such Securities Plan;
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(vi) a relocation of the Company's principal executive offices
or the Executive's relocation to any metropolitan area other than the
metropolitan area in which the Executive performed the Executive's
duties immediately prior to a Change in Control;
(vii) a substantial increase in the Executive's business travel
obligations over such obligations as they existed at the time of a
Change in Control;
(viii) any material breach by the Company or a Subsidiary of any
provision of this Agreement;
(ix) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company pursuant to
Section 7(a); or
(x) any purported termination by the Company or a Subsidiary of
the Executive's employment which is not effected pursuant to a Notice
of Termination satisfying the requirements of Section 3(f), including
any purported termination of employment under the circumstances
described in the last sentence of Section 3(a).
(f) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or a Subsidiary pursuant to Section 3(b), 3(c) or 3(d)
or by the Executive pursuant to Section 3(e) shall be communicated to the other
party by a Notice of Termination. 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 which sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's
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employment under the provision so indicated. For purposes of this Agreement,
no such purported termination by the Company or Subsidiary shall be effective
without such Notice of Termination.
(g) DATE OF TERMINATION. "Date of Termination" shall mean (a) if the
Executive's employment is terminated by the Company or a Subsidiary for
Disability, 30 days after Notice of Termination is given to the Executive
(provided that the Executive shall not have returned to the performance of the
Executive's duties on a full-time basis during such 30-day period) or (b) if the
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given.
4. SEVERANCE COMPENSATION UPON TERMINATION. (a) If the Executive's
employment by the Company or a Subsidiary is terminated (i) by the Company or
Subsidiary pursuant to Section 3(b), 3(c) or 3(d) or by reason of death or (ii)
by the Executive other than for Good Reason, the Executive shall not be entitled
to any severance compensation under this Agreement, but the absence of the
Executive's entitlement to any benefits under this Agreement shall not prejudice
the Executive's right to the full realization of any and all other benefits to
which the Executive shall be entitled pursuant to the terms of any employee
benefit plans or other agreements or policies of the Company or a Subsidiary in
which the Executive is a participant or to which the Executive is a party.
(b) If the Executive's employment by the Company or a Subsidiary is
terminated (x) by the Company or such Subsidiary other than pursuant to Section
3(b), 3(c) or 3(d) or by reason of death or (y) by the Executive for Good
Reason, then the Executive shall be entitled to the severance compensation
provided below:
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(i) In lieu of any further salary or incentive payments to the
Executive for periods subsequent to the Date of Termination, the
Company shall pay in cash as severance compensation to the Executive
at the time specified in subsection (ii) below, a lump-sum severance
payment equal to three (3) times the Executive's Adjusted Annual
Compensation. For purposes of this Agreement, "Adjusted Annual
Compensation" shall mean the sum of (x) an amount equal to the highest
level of the Executive's annual base salary in effect (calculated
prior to any deferral of salary, qualified or nonqualified) between
the time of the Change in Control and the Date of Termination, (y) an
amount equal to the greater of the amounts earned by the Executive
under the annual incentive compensation plan of the Company or a
Subsidiary (or under the Xxxxxxx Management Incentive Compensation
Plan, if applicable) for the two preceding calendar years (calculated
prior to any deferral of salary, qualified or nonqualified), or, if
the Executive has participated in such plan for only one year, an
amount equal to the amount earned under such plan for the preceding
calendar year, and (z) an amount equal to one-third of the sum of the
amounts of the current "Target" values for the Executive under any
annual or long term incentive compensation plans of the Company or a
Subsidiary, such Target values to be prorated from the beginning of
the applicable measurement period for each such plan through the end
of the month in which the Date of Termination occurs.
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(ii) The severance compensation provided for in subsection (i)
above shall be paid not later than the 10th day following the Date of
Termination; provided, however, that, if the amount of such
compensation cannot be finally determined on or before such day, the
Company shall pay to the Executive on such day an estimate, as
determined in good faith by the Company, of the minimum amount of such
compensation and shall pay the remainder of such compensation
(together with interest at the rate provided in Section 1274(b)(2)(B)
of the Internal Revenue Code of 1986, as amended (the "Code")) as soon
as the amount thereof can be determined, but in no event later than
the 30th day after the Date of Termination. In the event that the
amount of the estimated payment exceeds the amount subsequently
determined to have been payable, such excess shall constitute a loan
by the Company to the Executive payable on the 30th day after demand
by the Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code, commencing on the 31st day following such
demand).
(iii) The Company shall arrange to provide the Executive for a
period of thirty-six (36) months following the Date of Termination or
until the Executive's earlier death, with life, medical, dental,
accident and disability insurance benefits and a package of "executive
benefits", including to the extent applicable capital assessments and
dues for pre-existing club memberships and the use of an automobile or
an allowance therefor (collectively,
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"Employment Benefits"), substantially similar to those which the
Executive was receiving immediately prior to the Date of Termination.
(iv) During the term of this Agreement and through the period of
thirty-six (36) months following the Date of Termination, all benefits
under any pension or retirement plans, employee stock ownership plan
or any other plan or agreement relating to retirement benefits
(collectively, "Retirement Benefits") in which the Executive
participates shall continue to accrue to the Executive, crediting of
service of the Executive with respect to Retirement Benefits shall
continue, and the Executive shall be entitled to receive all
Retirement Benefits provided to the Executive as a fully vested
participant under any such plan or agreement relating to retirement
benefits. No contributions shall be required to be made by the
Executive to any plan providing for employee contributions following
the Date of Termination. To the extent that the amount of any
Retirement Benefits are or would be payable from a nonqualified plan,
the Company shall, as soon as practicable following the Date of
Termination (but in no event later than the 30th day after the Date of
Termination), pay directly to the Executive in one lump sum, cash in
an amount equal to the additional benefits that would have been
provided had such accrual or crediting been taken into account in
calculating such Retirement Benefits. Such lump sum payment shall be
calculated as provided in the relevant plan and, in the case of a
defined
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contribution plan, shall include an amount equal to the gross amount of
the maximum employer contributions.
(c) In the event the severance compensation payable under this
Section 4, either alone or together with any other payments to the Executive
from the Company or a Subsidiary (including, but not limited to, payments under
the Company's Stock Incentive Plan or any agreement or award issued pursuant to
such Plan or any successor plan), would constitute a "parachute payment" (as
defined in Section 280G of the Code), and subject the Executive to the excise
tax imposed by Section 4999 of the Code, the Company shall pay the Executive, as
additional severance compensation hereunder and payable at the same time or
times as such severance compensation, the amount of such excise tax and any
additional taxes payable by the Executive by reason of such payment (on the
basis of a customary "gross-up" formula), as calculated by the Company. The
Company agrees to indemnify and hold harmless the Executive from and against any
liability for the payment of additional taxes arising from any deficiency in the
amount of such excise tax and any additional taxes thereon so calculated by the
Company, together with any interest or penalties applicable thereto; provided,
however, that it shall be a condition of this obligation to indemnify and hold
harmless the Executive that the Executive shall have timely notified the Company
of any proposed assessment relating to any claimed deficiency therein and
offered the Company the right to contest such assessment or participate in, at
the expense of the Company, any proceeding relating thereto.
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5. PAYMENT OF TAXES; CONTINUATION OF EMPLOYMENT. Notwithstanding any
other provision of this Agreement or the premises hereto, in the event the
Executive is entitled to receive compensation (whether in the form of cash,
securities or other form of compensation) under or pursuant to any plan or
agreement of or with the Company or a Subsidiary as the result of a Change in
Control, the Company shall pay to the Executive any applicable excise tax, and
any taxes thereon, and shall indemnify and hold harmless the Executive in
respect thereof, as provided in Section 4(c) above, regardless of whether the
employment of the Executive with the Company or a Subsidiary shall have
terminated.
6. NO OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER CONTRACTUAL
RIGHTS. (a) The Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for under
this Agreement be reduced by any compensation earned by the Executive after the
termination of the Executive's employment with the Company or a Subsidiary.
(b) The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish the Executive's existing rights, or rights which would accrue solely as
a result of the passage of time, under any Benefit Plan, Incentive Plan or
Securities Plan, employment agreement or other contract, plan or arrangement of
the Company or any Subsidiary.
7. SUCCESSOR TO THE COMPANY. (a) The Company will require any successor
or assign (whether direct or indirect, by purchase,
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merger, consolidation or otherwise) to all or substantially all the
business and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place. Any
failure of the Company to obtain such agreement prior to the
effectiveness of any such succession or assignment shall be a material
breach of this Agreement and shall entitle the Executive to terminate
the Executive's employment for Good Reason. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this Section 7 or
which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts are still payable to the Executive
hereunder all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisees,
legatees, or other designees or, if there be no such designee, to the
Executive's estate.
8. NOTICES. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
given by United States certified mail (return receipt requested, postage
prepaid), by personal delivery or by a
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nationally recognized express delivery service, and shall be deemed to
have been given when actually received, as follows:
If to the Company:
Hussmann International, Inc.
00000 Xx. Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention of: General Counsel
If to the Executive, to the Executive's home address as shown on the
Company's personnel records; or such other address as either party may have
given to the other in writing in accordance herewith.
9. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is agreed to in
writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
10. EMPLOYMENT. The Executive agrees to be bound by the terms and
conditions of this Agreement and to remain in the employ of the Company or a
Subsidiary during any period following any public announcement by any person of
any proposed transaction or
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transactions which, if effected, would result in a Change in Control until a
Change in Control has taken place or, in the opinion of the Board of
Directors, such person has abandoned or terminated its efforts to effect a
Change in Control. Subject to the foregoing and to the last sentence of
Section 3(a), nothing contained in this Agreement shall impair or interfere
in any way with the right of the Executive to terminate the Executive's
employment or the right of the Company or any Subsidiary to terminate the
employment of the Executive with or without cause prior to a Change in
Control. Nothing contained in this Agreement shall be construed as a
contract of employment between the Company or any Subsidiary and the
Executive or as a right of the Executive to continue in the employ of the
Company or any Subsidiary, or as a limitation of the right of the Company or
any Subsidiary to discharge the Executive with or without cause prior to a
Change in Control.
11. VALIDITY. The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
13. LEGAL FEES AND EXPENSES. (a) The Company shall pay all legal fees and
expenses which the Executive may incur as a result of the Company or a
Subsidiary contesting the validity, enforceability or the Executive's
interpretation of, or determinations under, this Agreement.
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(b) The Company shall pay all legal fees and expenses which the
Executive may incur by reason of the termination of the Executive's employment,
other than as a result of (i) the Executive's death, (ii) the Executive's
Disability (as defined in Section 3(b) above), (iii) the Executive's Retirement
(as defined in Section 3(c) above), (iv) the Executive's termination for Cause
(as defined in Section 3(d) above), or (v) the Executive's decision to terminate
employment other than for Good Reason (as defined in Section 3(e) above; such
fees and expenses shall include, without limitation, those incurred in
contesting or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement.
(c) The Company shall pay all legal fees and expenses which the
Executive may incur as a result of any tax assessments or proceedings arising
from payments made by the Company pursuant to Section 4(c) or Section 5 above.
(d) If the payment by the Company of any legal fees and expenses
pursuant to this Section 13 shall constitute compensation to the Executive, the
Company agrees, as a separate and independent undertaking, to pay to the
Executive upon demand any and all taxes, of whatever nature or description,
applicable to such payment, together with any taxes thereon (on the basis of a
customary "gross-up" formula).
14. CONFIDENTIALITY. The Executive shall retain in confidence any and all
confidential information known to the Executive concerning the Company and its
Subsidiaries and their business so long as such information is not otherwise
publicly disclosed.
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15. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION OF PRIOR
AGREEMENT(S). This Agreement shall become effective on the Effective Date,
whereupon the Prior Agreements shall be terminated and be of no further force
or effect. Xxxxxxx shall be and be deemed a third-party beneficiary of this
Section 15.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
HUSSMANN INTERNATIONAL, INC.
By
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Name:
Title:
EXECUTIVE
By
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Name:
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