Exhibit (10) (f) (1)
(Level II)
CHANGE IN CONTROL AGREEMENT
AGREEMENT dated as of _________________, between XXXX
CORPORATION, a Pennsylvania corporation (the "Company"), and _______________
(the "Executive").
W I T N E S S E T H T H A T
WHEREAS, the Board of Directors of the Company has determined
that it is in the best interests of the Company and its shareholders that the
Company and its subsidiaries be able to attract, retain and motivate
highly-qualified executive personnel and, in particular, that they be assured of
continuity of management in the event of any actual or threatened change in
control of the Company; and
WHEREAS, the Board of Directors of the Company believes that
the execution by the Company of change in control agreements with certain
executive personnel, including the Executive, is an important factor in
achieving this desired end.
THEREFORE, in consideration of the mutual obligations and
agreements contained herein, and intending to be legally bound hereby, the
Executive and the Company agree as follows:
1. Term of Agreement.
This Agreement shall become effective at such time (the
"Effective Date"), if any, as a Change in Control (as defined in Section 2
hereof) of the Company occurs; provided, however, that this Agreement shall
terminate and be of no further force and effect if: (a) a Change in Control
shall not have occurred by December 31, 2004, or such later date as shall have
been approved by the Board of Directors of the Company and agreed to by the
Executive; or (b) prior to the Effective Date, the Executive ceases, for any
reason, to be an officer of the Company, except that if the Executive's status
as an officer of the Company is terminated by the Company prior to a Change in
Control and it is reasonably demonstrated that such termination (i) was at the
request of a person or entity who or which has taken steps reasonably calculated
to effect an imminent Change in Control or (ii) otherwise arose in connection
with or in anticipation of an imminent Change in Control, then this Agreement
shall become effective, and the "Effective Date" shall be, the date of such
termination.
2. Change in Control.
As used in this Agreement, a "Change in Control" of the
Company shall be deemed to have occurred if:
(a) any person (a "Person"), as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
(i) the Company and/or its wholly-owned subsidiaries, (ii) any ESOP or other
employee benefit plan of the Company, and any trustee or other fiduciary in such
capacity holding securities under such plan, (iii) any corporation owned,
directly or indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company or (iv) the
Executive or any group of Persons of which he or she voluntarily is a part), is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 30% or
more of the combined voting power of the Company's then outstanding securities,
or such lesser percentage of voting power, but not less than 15%, as the Board
of Directors of the Company shall determine; provided, however that a Change in
Control shall not be deemed to have occurred under the provisions of this
subsection (a) by reason of the beneficial ownership of voting securities by
members of the Xxxxxx Family (as defined below) unless and until the beneficial
ownership of all members of the Xxxxxx Family (including any other individuals
or entities who or which, together with any member or members of the Xxxxxx
Family, are deemed under Sections 13(d) or 14(d) of the Exchange Act to
constitute a single Person) exceeds 50% of the combined voting power of the
Company's then outstanding securities;
(b) during any two-year period beginning after October 1, 1999, Directors of the
Company in office at the beginning of such period plus any new Director (other
than a Director designated by a Person who has entered into an agreement with
the Company to effect a transaction within the purview of subsections (a) or (c)
hereof) whose election by the Board of Directors of the Company, or whose
nomination for election by the Company's shareholders, was approved by a vote of
at least two-thirds 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 previously so approved, shall cease for any reason to constitute at
least a majority of the Board; or
(c) the Company's shareholders or the Company's Board of Directors shall approve
(i) any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which the Company's voting
common shares (the "Common Shares") would be converted into cash, securities
and/or other property, other than a merger of the Company in which holders of
Common Shares immediately prior to the merger have the same proportionate
ownership of common shares of the surviving corporation immediately after the
merger as they had in the Common Shares immediately before, (ii) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets or earning power of the
Company, or (iii) the liquidation or dissolution of the Company.
As used in this Agreement, "members of the Xxxxxx Family"
shall mean the wife, children and descendants of such children of the late
Xxxxxx X. Xxxxxx III, their respective spouses and estates, any trusts primarily
for the benefit of any of the foregoing and the administrators, executors and
trustees of any such estates or trusts.
3. Employment.
(a) The Company hereby agrees to continue the Executive in its employ (directly
and/or indirectly through a subsidiary), and the Executive hereby agrees to
remain in the employ of the Company (and/or any such subsidiary), for not less
than the period commencing on the Effective Date and ending on the earlier to
occur of the second anniversary of the Effective Date or the first day of the
month following the Executive's 65th birthday (the "Employment Period"), subject
to earlier termination as hereinafter provided in Section 5(a), to exercise such
authority, to perform such duties, and to possess such status, offices, support
staff, titles and reporting requirements as are at least commensurate with those
generally exercised, performed and possessed by the Executive during the 90-day
period immediately prior to the Effective Date or such lesser period as the
Executive shall have been employed by the Company or its subsidiaries (the "Base
Period"). Such services shall be performed at the location where the Executive
was primarily employed during the Base Period or at such other location as the
Company may reasonably require; provided that the Executive's travel
requirements shall not be materially different in nature or scope than during
the Base Period and the Executive shall not be required to accept a primary
employment location which is more than 25 miles from the location at which he
primarily was employed during the Base Period. During the Employment Period, and
excluding any periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to perform faithfully, diligently and efficiently
his or her responsibilities hereunder; provided, however, that the Executive may
(i) serve on corporate, civic or charitable boards or committees, (ii) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(iii) manage personal investments, so long as such activities do not materially
interfere with the performance of the Executive's responsibilities hereunder. To
the extent that any such activities have been conducted by the Executive prior
to the Effective Date, the continued conduct of such activities (or activities
similar in nature and scope thereto) thereafter shall be deemed not to interfere
with the performance of the Executive's responsibilities hereunder.
(b) The Executive acknowledges that nothing in this Agreement shall be deemed to
give him or her continued rights to employment by the Company or its
subsidiaries in an executive or any other capacity with respect to any period
prior to the Effective Date, if any, of this Agreement, or, subject to Section
1(b) hereof, to entitle the Executive to compensation or benefits in the event
of termination of the Executive's employment prior to the Effective Date.
4. Compensation, Benefits, etc. During the Employment Period, the
Executive shall be compensated as follows:
(a) The Executive shall receive an annual cash salary, payable not less
frequently than semi-monthly, which is not less than (i) the average of the
Executive's aggregate compensation from the Company and its subsidiaries during
the two calendar years preceding the Effective Date (or such lesser period as
the Executive shall have been employed by the Company or its subsidiaries), as
reported on the Executive's Internal Revenue Service Forms W-2 (other than
compensation relating to relocation expense; the grant, exercise or settlement
of stock options; the sale or other disposition of shares received upon exercise
or settlement of such options; the grant, vesting or settlement of stock grants
made under the Company's 1983 and 1993 Stock Option and Grant Plans; or the sale
or other disposition of shares received upon vesting or settlement of such
grants), or (ii) at the Executive's sole option, exercised in writing within 90
days after the Effective Date, the Executive's average annual base salary from
the Company and its subsidiaries during such two-year period (or such lesser
period as the Executive shall have been employed by the Company or its
subsidiaries).
(b) The Executive shall be entitled to receive fringe benefits, employee
benefits and perquisites (including, but not limited to, vacation, automobile,
medical, disability, dental and life insurance benefits) which are at least as
favorable to the Executive as the fringe benefits, employee benefits and
perquisites provided directly or indirectly by the Company to executives with
comparable duties.
(c) If the Executive limits his or her compensation pursuant to subsection
(a)(ii) to his or her average base salary (but not otherwise), he or she shall
be eligible to participate in all stock option, restricted stock and other
short-term and long-term incentive compensation plans and programs which provide
opportunities to receive compensation which are at least as favorable to the
Executive as the opportunities provided by the Company to executives with
comparable duties.
(d) Notwithstanding any other provision of this Agreement (whether in this
Section 4, in Section 6 or elsewhere), (i) the Board of Directors may authorize
an increase in the amount, duration and nature of and/or the acceleration of any
compensation or benefits payable under this Agreement, as well as waive or
reduce the requirements for entitlement thereto, and (ii) the Company may deduct
from amounts otherwise payable to the Executive such amounts as it reasonably
believes it is required to withhold for the payment of federal, state and local
taxes.
5. Early Termination of Employment.
(a) The Executive's Employment Period shall terminate prior to its stated
expiration set forth in Section 3 hereof in the following circumstances:
(i) the Executive's Death;
(ii) at the option of the Company in the event of the Executive's
Disability (as defined below);
(iii) at the option of the Company for Cause (as defined below) or
without Cause; or
(iv) upon resignation of the Executive in the circumstances set
forth in Section 6(b)(ii) or (iii).
For purposes of this Agreement: "Disability" shall mean: (1) a physical or
mental disability which, at least 26 weeks after its commencement, is determined
to be total and permanent by a physician selected by the Company or its insurers
and reasonably acceptable to the Executive or the Executive's legal
representative or (2) if the Company then has in effect a disability plan
covering executives generally, including the Executive, the definition of
covered total and permanent "disability" set forth in such plan; and "Cause"
shall mean (A) willful and material breach of this Agreement by the Executive,
(B) dishonesty, fraud, willful malfeasance, gross negligence or other gross
misconduct, in each case relating to the performance of the Executive's
employment hereunder, which is materially injurious to the Company, or (C)
conviction of or plea of guilty to a felony; such Cause to be determined, in
each case, by a resolution approved by at least two-thirds of the Directors of
the Company after having afforded the Executive a reasonable opportunity to
appear before the Board of Directors of the Company and present his or her
position.
(b) The Company shall give the Executive not less than 60 days prior written
notice of any intended termination of the Executive's employment by the Company
and its subsidiaries for Cause or without Cause. In the event of a proposed
termination for Cause, such notice shall specify the grounds for such
termination, and the Company and its subsidiaries shall only be entitled to
terminate the Executive for Cause if the Executive shall have failed to remedy
such Cause within said 60-day notice period. The Executive shall give the
Company not less than 60 days prior written notice of any proposed resignation
by the Executive.
6. Compensation, Benefits, etc. upon Termination.
(a) If the Executive's Employment Period is terminated by death, Disability,
resignation (other than a resignation in the circumstances set forth in
subsection (b) below) or for Cause, the Company shall be obligated only to
provide the compensation, benefits, etc. set forth in Section 4 hereof up to the
date of termination; provided, however, that the Executive shall be entitled to
such additional compensation and benefits, if any, as may be provided for under
the express terms of any benefit plans or programs of the Company and its
subsidiaries in which he or she is then participating.
(b) If the Executive's Employment Period is terminated by:
(i) the Company without Cause;
(ii) resignation of the Executive at any time during the
four-month period commencing one year after the Effective
Date; or
(iii) resignation of the Executive as a result of: (1) a material
change in the nature or scope of the Executive's authorities,
powers, functions or duties from those described in Section 3
hereof, a reduction in the Executive's total compensation,
benefits, etc. from those provided for in Section 4 hereof,
or a material breach by the Company of any other provision of
this Agreement, or (2) a reasonable determination by the
Executive that, as a result of a Change in Control of the
Company and a change in the Company's circumstances and/or
operations thereafter significantly affecting his or her
position, he or she is unable effectively to exercise the
authorities, powers, functions or duties contemplated by
Section 3 hereof;
there shall have been deemed to be a "Covered Termination" for the purposes of
this Agreement, and the Executive shall be entitled to the compensation,
benefits, etc. hereinafter provided in this Section 6.
(c) In the event of a Covered Termination of the Executive during the Employment
Period, the Company shall pay or cause to be paid to the Executive in cash a
severance allowance (the "Severance Allowance") equal to two times the sum of
the amounts determined in accordance with the following paragraphs (i) and (ii):
(i) an amount equivalent to the highest annualized base salary
which the Executive was entitled to receive from the Company
and its subsidiaries at any time during the Employment Period
prior to the Covered Termination; and
(ii) an amount equal to the average of the aggregate annual cash
amounts paid to the Executive under all applicable short-term
and long-term incentive compensation plans maintained by the
Company and its subsidiaries during the three calendar years
prior to the year such Covered Termination occurs (provided,
however, that (1) such calculation shall be made on an
individual incentive plan basis, (2) in determining the
average amount paid under a given incentive plan during such
period there shall be excluded any year in which no amounts
were paid to the Executive under the plan, and (3) there
shall be excluded from such calculation any amounts paid to
the Executive under any such incentive compensation plan as a
result of the acceleration of such payments under such plan
due to termination of the plan, a Change in Control of the
Company or a similar occurrence).
(d) The Severance Allowance shall be paid to the Executive in a lump sum within
60 days after the date of any Covered Termination of the Executive under by
Section 6(b), subject to subsection (h) below.
(e) Subject to subsection (h) below:
(i) for a period of one year following a Covered Termination of
the Executive, the Company shall make or cause to be made
available to the Executive, at its expense, (1) outplacement
counseling and other outplacement services comparable to
those available for the Company's senior executives prior to
the Effective Date and (2) an office with standard telephone
equipment at the Executive's primary place of business prior
to termination, or at another location reasonably
satisfactory to the Executive; and
(ii) for a period of two years following a Covered Termination of
the Executive, the Executive and the Executive's dependents
shall be entitled to participate in the Company's life,
medical and dental insurance plans at the Company's expense
(to the extent provided in such plans at the time of such
Covered Termination) as if the Executive were still employed
by the Company or its subsidiaries under this Agreement. The
Executive also shall be entitled during such period to the
continued use of an automobile, at the Company's or its
subsidiaries' expense, if one was being provided by the
Company or its subsidiaries for the Executive's use at the
time of such Covered Termination or at any time during the
Base Period; provided that if such automobile is under lease,
such right to continued use shall not extend beyond the
expiration of the term of such lease, but if the Company, its
subsidiaries or the Executive have an option to purchase the
automobile under such lease, the Executive shall have the
right to cause such purchase option to be exercised and to
purchase said automobile at its depreciated cost (as
determined in accordance with the Company's policies as in
effect on October 1, 1999).
(f) If, despite the provisions of subsection (e) above, life, medical or dental
insurance benefits are not paid or provided under any such plan to the Executive
or his or her dependents because the Executive is no longer an employee of the
Company or its subsidiaries, the Company itself shall, to the extent necessary,
pay or otherwise provide for such benefits to the Executive or his or her
dependents.
(g) Except as expressly provided in subsections (a), (c), (d), (e) and (f) above
or under the express terms of any compensation or benefit plans or agreements
thereunder of the Company or its subsidiaries applicable to the Executive, upon
the date of any Covered Termination, all other compensation and benefits of the
Executive shall cease to accrue; provided, however, that the Severance Allowance
payable hereunder shall be in lieu of any severance payments to which the
Executive might otherwise be entitled under the terms of any severance pay plan,
policy or arrangement maintained by the Company and shall be credited against
any severance payments to which the Executive may be entitled by statute.
(h) Except as otherwise provided under the express terms of any benefit plans or
agreements thereunder of the Company or its subsidiaries, the Company's
obligations to continue benefits pursuant to Sections 6(e) and 6(f) shall
terminate on the earlier to occur of: (i) the termination date therefor
specified in such Sections and (ii) the date of a determination by a court or
arbitration panel pursuant to Sections 7(c) or 9 hereof, respectively, that the
Executive has materially and willfully violated the provisions of Sections 7(a)
or (b) hereof. Further, in the event the Executive becomes employed (as defined
below) during the period with respect to which benefits are continuing pursuant
to Sections 6(e) and/or 6(f): (1) the Executive shall notify the Company not
later than the day such employment commences, and (2) the benefits provided for
in Sections 6(e) and 6(f) shall terminate as of the date of such employment
(except to the extent that continued coverage is required to be made available
under applicable law). For the purposes of this subsection (h), the Executive
shall be deemed to have become "employed" by another entity or person only if
the Executive becomes essentially a full-time employee of a person or an entity
(not more than 30% of which is owned by the Executive and/or members of his or
her family); and the Executive's "family" shall mean his or her parents, his or
her siblings and their spouses, his or her children and their spouses, and the
Executive's spouse and his or her parents and siblings. Nothing herein shall
relieve the Company of its obligations for or benefits accrued up to the time of
termination provided for herein.
7. Confidentiality and Non-Competition.
(a) The Executive shall hold in a fiduciary capacity for the benefit of the
Company and its subsidiaries all secret or confidential information, knowledge
or data relating to the Company or any of its subsidiaries and their respective
businesses which shall have been obtained by the Executive during the
Executive's employment by the Company or any of its subsidiaries and which shall
not have become public knowledge (other than by acts by the Executive or his or
her representatives in violation of this Agreement). After termination of the
Executive's employment with the Company and its subsidiaries for any reason, the
Executive shall not, without the prior written consent of the Company, use for
the Executive's own benefit or communicate or divulge to anyone other than the
Company and those designated by it any such information, knowledge or data.
(b) The Executive agrees that, during the Executive's employment by the Company
or any of its subsidiaries and, if Executive's employment is terminated by
Executive pursuant to Sections 6(b)(ii) or 6(b)(iii)(2), for a period of two
years following such termination of employment, the Executive shall not: (i)
directly or indirectly, anywhere in the world, manufacture, produce, sell or
market or cause or assist any other person or entity to manufacture, produce,
sell or market any product in direct competition with any product then sold or
marketed by the Company or any of its subsidiaries, whether or not utilizing any
confidential information of the Company or any of its subsidiaries, or (ii) be
an employee, employer, consultant, officer, director, partner, trustee or
shareholder of more than 5% of the outstanding common stock of any person or
entity that is engaged in any such activities.
(c) The Executive acknowledges that the covenants of the Executive contained in
subsections (a) and (b) above are reasonable and necessary for the protection of
the Company's legitimate interests. However, in the event that the duration
and/or scope of any such covenant of the Executive are finally determined by any
court or arbitration panel of applicable jurisdiction to be of such length or
breadth as to render the covenant unenforceable, the duration and/or scope of
such covenant shall be reduced to such length and/or breadth as shall render
such covenant enforceable. Notwithstanding the provisions of Section 9 hereof,
the Company shall be entitled to seek equitable remedies, including injunctive
relief, in any court of applicable jurisdiction in the event of any breach or
threatened breach by the Executive of the covenants contained in subsection (a)
above (but no such equitable judicial remedy shall be available for a breach of
subsection (b) above).
(d) In the event that it is determined by a court or arbitration panel pursuant
to Sections 7(c) or 9 hereof, respectively, that Executive has materially and
willfully violated the provisions of Section 7(a) or (b) hereof, the court or
arbitration panel may award damages to the Company; provided, however, that such
damages, in the case of a violation of Section 7(b) hereof, shall not exceed the
amount of the compensation and the cost to the Company of the benefits received
by the Executive under this Agreement during the period that the violation
existed plus interest thereon at the rate applied by Pennsylvania courts to
damage awards. (For the purposes of the proviso in the preceding sentence, the
Severance Allowance, although actually payable in a lump sum pursuant to Section
6(d), shall be deemed to be payable ratably over the two-year period following
Executive's Covered Termination.) In no event shall an asserted violation of the
provisions of Section 7(a) or (b) hereof constitute a basis for deferring or
withholding any compensation or benefits otherwise payable to the Executive
under this Agreement unless and until the existence of a material and willful
violation is determined by a court or by arbitration pursuant to Sections 7(c)
or 9 hereof, respectively.
8. Set-Off Mitigation. Subject to Section 6(h) hereof, the Company's obligation
to make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against the Executive or others. In no event shall the Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement.
9. Arbitration; Costs and Expenses of Enforcement.
(a) Except as otherwise provided in Section 7(c) and 10(b) hereof, any
controversy or claim arising out of or relating to this Agreement or the breach
thereof which cannot promptly be resolved by the parties shall be promptly
submitted to and settled exclusively by arbitration in the City of Philadelphia,
Pennsylvania in accordance with the laws of the Commonwealth of Pennsylvania by
three arbitrators, one of whom shall be appointed by the Company, one by the
Executive and the third of whom shall be appointed by the first two arbitrators.
The arbitration shall be conducted in accordance with the rules of the American
Arbitration Association, except with respect to the selection of arbitrators
which shall be as provided in this Section 9. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
(b) In the event that it shall be necessary or desirable for the Executive to
retain legal counsel and/or incur other costs and expenses in connection with
the enforcement of any and all of his or her rights under this Agreement, the
Company shall pay (or the Executive shall be entitled to recover from the
Company, as the case may be) his or her reasonable attorneys' fees and costs and
expenses in connection with the enforcement of his or her said rights (including
those incurred in or related to any arbitration proceedings provided for in
subsection (a) above and the enforcement of any arbitration award in court),
regardless of the final outcome, unless the arbitrators or a court shall
determine that under the circumstances recovery by the Executive of all or a
part of any such fees and costs and expenses would be unjust.
10. Limitation on Payment Obligation.
(a) For purposes of this Section 10, all terms capitalized but not otherwise
defined herein shall have the meanings as set forth in Section 280G of the
Internal Revenue Code of 1986, as amended, together with any applicable
regulations thereunder (the "Code"). In addition:
(i) The term "Parachute Payment" shall mean a
payment described in ss.280G(b)(2)(A) or
ss.280G(b)(2)(B) (including, but not limited
to, any stock option rights, stock grants
and other cash and noncash compensation
amounts that are treated as payments under
either such section), and not excluded under
ss.280G(b)(4)(A) or ss.280G(b)(6), of the
Code;
(ii) The term "Reasonable Compensation" shall
mean reasonable compensation for prior
personal services as defined in
ss.280G(b)(4)(B) of the Code and subject to
the requirement that any such reasonable
compensation must be established by clear
and convincing evidence; and
(iii) The portion of the "Base Amount" and the
amount of "Reasonable Compensation"
allocable to any "Parachute Payment" shall
be determined in accordance with
ss.280G(b)(3) and (4) of the Code.
(b) Notwithstanding any other provision of this Agreement, each Parachute
Payment to be made to or for the benefit of the Executive, whether pursuant to
this Agreement or otherwise, with respect to a Change in Control shall be
reduced if and to the extent necessary so that the aggregate Present Value of
all such Parachute Payments shall be at least one dollar ($1) less than the
greater of (i) three times the Executive's Base Amount and (ii) the aggregate
Reasonable Compensation allocable to such Parachute Payments. Unless otherwise
agreed by the Executive and the Company, any reduction in Parachute Payments
caused by reason of this subsection (b) shall be made proportionately with
respect to each such Parachute Payment.
This subsection (b) shall be interpreted and applied to limit
the amounts otherwise payable to the Executive under this Agreement or otherwise
only to the extent required to avoid any material risk of the imposition of
excise taxes on the Executive under ss.4999 of the Code or the disallowance of a
deduction to the Company under ss.280G(a) of the Code. In the making of any such
interpretation and application, the Executive shall be presumed to be a
disqualified individual for purposes of applying the limitations set forth in
this subsection (b) without regard to whether or not the Executive meets the
definition of disqualified individual set forth in ss.280G(c) of the Code. In
the event that the Executive and the Company are unable to agree as to the
application of this subsection (b), the Company's independent auditors shall
select independent tax counsel to determine the amount of such limits. Such
selection of tax counsel shall be subject to the Executive's consent, provided
that the Executive shall not unreasonably withhold his or her consent. The
determination of such tax counsel under this Section shall be final and binding
upon the Executive and the Company.
(c) Notwithstanding any other provision of this Agreement, no payments shall be
made hereunder to or for the benefit of the Executive if and to the extent that
such payments are determined to be illegal.
11. Notices. Any notices, requests, demands and other communications provided
for by this Agreement shall be sufficient if in writing and if hand delivered or
if sent by registered or certified mail, if to the Executive, at the last
address he or she has filed in writing with the Company or, if to the Company,
at its principal executive offices. Notices, requests, etc. shall be effective
when actually received by the addressee or at such address.
12. Assignment and Benefit.
(a) This Agreement is personal to the Executive and shall not be assignable by
the Executive, by operation of law or otherwise, without the prior written
consent of the Company, otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's heirs and legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company
and its successors and assigns, including without limitation, any subsidiary of
the Company to which the Company may assign any of its rights hereunder;
provided, however, that no assignment of this Agreement by the Company, by
operation of law or otherwise, shall relieve it of its obligations hereunder,
except an assignment of this Agreement to, and its assumption by, a successor
pursuant to subsection (c) below.
(c) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation operation of law or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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
had taken place, but, irrespective of any such assignment or assumption, this
Agreement shall inure to the benefit of and be binding upon such a successor. As
used in this Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid.
13. Governing Law. The provisions of this Agreement shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania without reference
to principles of conflicts of laws.
14. Full Settlement. In the event of the termination of the Executive's
Employment Period under this Agreement, the payments and other benefits provided
for by this Agreement (except as otherwise provided under the express terms of
any compensation or benefit plans of the Company or its subsidiaries or as may
otherwise be provided by applicable law) shall constitute the entire obligation
of the Company and its subsidiaries to the Executive and shall also constitute
full and complete settlement of any claim under law or in equity that the
Executive might otherwise assert against the Company, its subsidiaries or any of
its or their respective directors, officers or employees on account of such
termination of employment.
15. Entire Agreement. This Agreement represents the entire agreement and
understanding of the parties with respect to the subject matter hereof, and it
may not be altered or amended except by an agreement in writing.
16. No Waiver. The failure to insist upon strict compliance with any provision
of this Agreement by any party shall not be deemed to be a waiver of any future
noncompliance with such provision or of noncompliance with any other provision.
17. Severability. In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in
full force and effect.
IN WITNESS WHEREOF, the Executive has hereunto set his or her
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused these presents to be executed in its name and on its behalf, and
attested by its Secretary or Assistant Secretary, all as of the day and year
first above written.
EXECUTIVE
XXXX CORPORATION
By
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Its
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ATTEST:
