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SEVERANCE AGREEMENT, RESIGNATION,
AND FULL GENERAL RELEASE
This Severance Agreement, Resignation, and Release ("Agreement") is made
and entered into on January 23, 1998 by and between PAYLESS CASHWAYS, INC.
("PAYLESS") and X. X. XXXXXXX, XX. ("XXXXXXX").
WHEREAS, HOLLAND was employed by PAYLESS on June 30, 1992, and is entitled
to the benefits of an Executive Change in Control Agreement dated as of June 26,
1997, as amended as of August 20, 1997, (the "Control Agreement"); and
WHEREAS, PAYLESS and HOLLAND mutually wish to terminate the employment
status of HOLLAND, and HOLLAND's employment with PAYLESS shall end on January
30, 1998, or such later date as HOLLAND and PAYLESS shall agree, and
WHEREAS, PAYLESS and HOLLAND have agreed that HOLLAND shall resign as
Senior Vice President-Administration/Secretary, but that for purposes of his
severance benefits HOLLAND's termination shall be regarded as a termination of
his employment without cause by PAYLESS;
NOW THEREFORE, in consideration of the mutual promises, agreements and
releases contained in this Agreement, the parties agree as follows:
1. A. PAYLESS' AGREEMENTS
1. EFFECTIVE DATE
PAYLESS acknowledges that this Agreement will become effective on the 8th
day following HOLLAND's execution of this Agreement (the "Effective Date"), and
that HOLLAND will not be required to perform services for PAYLESS after January
30, 1998, or such later date as HOLLAND and PAYLESS shall agree.
2. SEVERANCE BENEFITS
PAYLESS agrees to provide HOLLAND the severance benefits set forth below.
1. Lump Sum Payment
(1) PAYLESS agrees to pay HOLLAND on the Effective Date a lump
sum payment (less applicable payroll deductions) in the amount set forth on
Schedule I hereto. As set forth in Schedule I, such lump sum payment consists of
(A) the amount that HOLLAND would have received as one year's annual Base Salary
from the Effective Date through February 1, 1999 (the "Severance Period") (based
on his base salary in effect on July 21, 1997),
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(B) the remaining amount due HOLLAND under the PAYLESS Reorganization Retention
Plan, and (C) an amount for unused earned vacation days through the Effective
Date. In addition, PAYLESS shall pay HOLLAND on the Effective Date or as
promptly thereafter as is practicable an amount equal to any previously
unreimbursed business expenses.
(2) PAYLESS also agrees to pay, in lieu of matching contributions
to the Payless Cashways, Inc. Employee Savings Plan which would otherwise have
been made on HOLLAND's behalf during the Severance Period, and in consideration
for the Release of Liability contained herein in Paragraph B.2, an additional
lump sum payment (less applicable payroll deductions) of $10,000.00.
2. Continuation of Benefits PAYLESS agrees that during the Severance
Period it will provide HOLLAND with health, life (including supplemental death
benefits), and dental benefits substantially equivalent to those received by
HOLLAND as of the date of the termination of his employment. Such benefits are
described in Schedule II and shall be provided during the Severance Period (or,
if longer, the period during which such benefits would have been provided at
PAYLESS' expense under applicable plans of PAYLESS. Except as may be indicated
in Schedule II, such health, life and dental benefits shall be provided at the
same coverage levels provided to HOLLAND as of the date of the termination of
his employment, and such benefits shall be provided at PAYLESS' expense, subject
to the same cost sharing provisions, if any, applicable to HOLLAND as of the
date of the termination of his employment. In addition, PAYLESS agrees that
during the Severance Period it will provide HOLLAND with disability benefits
similar to those that HOLLAND was receiving or was entitled to receive during
the period of his employment, except that during the Severance Period, such
benefits will provide a maximum monthly benefit of $5,000.00. Such benefits are
also listed in Schedule II. PAYLESS agrees to use its reasonable best efforts to
obtain an additional $5,000.00 of monthly disability benefits on behalf of
HOLLAND during the Severance Period. After the Severance Period, HOLLAND shall
be eligible for COBRA continuation coverage of health and dental benefits for a
period of 18 months or such period as may then be provided by law. HOLLAND shall
not be entitled to receive such benefits to the extent that he obtains other
employment prior to the end of the Severance Period that provides comparable
benefits, provided, however, that HOLLAND is under no obligation to seek other
employment during such period.
3. Retirement Benefits PAYLESS agrees that for purposes of determining
the benefits payable to HOLLAND under the Payless Cashways, Inc. Amended
Retirement Plan (the "Pension Plan") and HOLLAND's eligibility therefor,
HOLLAND's date of separation from PAYLESS shall be deemed to be February 1,
1999, his age shall be deemed to be his age on such date and the amount
allocable to base pay included in the lump sum payment in Paragraph A.2.a(i)
shall be included in determining career average pay. If the terms of the Pension
Plan do not permit the foregoing, then on the Effective Date PAYLESS shall pay
HOLLAND an amount equal to the present value of the additional retirement
benefits that would have accrued had he continued to perform services for
PAYLESS through the Severance Period at the same rate of compensation as was in
effect on the date of this Agreement. The present value payable hereunder shall
be
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calculated using GATT rate currently in effect under the Pension Plan.
4. Automobile PAYLESS also agrees to a lump sum payment (less
applicable payroll deductions) of $8,158.00 in lieu of HOLLAND's car allowance,
to be paid on the Effective Date. HOLLAND and PAYLESS agree that the lease, and
use, of his company car will be terminated as of the Effective Date.
3. DEATH OF HOLLAND
The death of HOLLAND prior to the expiration of this Agreement will not
void this Agreement, but the terms thereof will survive his death. In the event
that HOLLAND dies prior to receipt of all sums set forth in section A.2. above,
then any and all such remaining sums not yet received by HOLLAND otherwise due
under this Agreement shall become due and payable to the beneficiaries
hereinafter listed: Principal Beneficiary: The Trustee(s) under Trust Agreement
created by Xxxxxx X. Xxxxxxx Xx. dated December 15, 1992, as amended, or the
successor(s) in trust, Beneficiary, if the trust evidenced by said agreement is
in effect at HOLLAND's death. If said trust is not then in effect, the proceeds
will be payable in one sum to HOLLAND's estate.
4. STOCK INCENTIVE
The parties acknowledge that HOLLAND has no vested stock incentives.
5. OUTPLACEMENT
PAYLESS will provide HOLLAND at PAYLESS' expense with telephone answering
and e-mail services at Payless for a period of 60 days and executive-level
outplacement services at an outplacement service of PAYLESS' choice in the
Kansas City area, including an office and telephone transfer services, until he
obtains other employment, for a maximum of 18 months.
6. INDEMNIFICATION
Set forth as Schedules III through V hereto are provisions of PAYLESS
Certificate of Incorporation and Bylaws relating to indemnification of directors
and officers and an Indemnification Agreement dated December 2, 1997, between
PAYLESS and HOLLAND (collectively "Indemnification Provisions"). Such
Indemnification Provisions are incorporated by this reference and made a part of
this Agreement in their entirety. PAYLESS acknowledges and agrees that HOLLAND
and his estate are entitled to the benefit of such Indemnification Provisions
notwithstanding his termination of service and that such provisions apply to his
service as an officer of PAYLESS and any of its predecessors. PAYLESS further
acknowledges that the Indemnification Provisions obligate PAYLESS, among other
matters, to indemnify HOLLAND against any and all expenses (including costs and
attorneys' fees) which he might incur as a witness or party with respect to that
certain matter pending in the United States District Court for the Southern
District of Iowa captioned PAYLESS Cashways, Inc. Partners [et. al.] v. PAYLESS
Cashways, Inc. [et. al.]. PAYLESS agrees to honor such obligations with respect
to such
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proceeding or any other proceeding to which HOLLAND may become a party or
witness by reason of the fact that he served as an officer of PAYLESS, except as
may be provided in the Indemnification Provisions. PAYLESS further agrees that
as to HOLLAND, any amendments or changes to the Indemnification Provisions or
the insurance coverages described in paragraph A.7 below will not adversely
affect HOLLAND without HOLLAND's written consent, and that breach by HOLLAND of
any provision of this AGREEMENT will not constitute grounds by PAYLESS to change
such coverages or to terminate its obligations under this Agreement or otherwise
with respect to the Indemnification Provisions. PAYLESS and HOLLAND agree that
said Indemnification Agreement is hereby amended to delete section 9.6 thereof
in its entirety.
7. LIABILITY INSURANCE
PAYLESS currently maintains $30 million in directors' and officers'
liability insurance that provides coverage for HOLLAND and other officers of
PAYLESS. The coverage period, including the run-off provisions provided for
thereunder, continue through December 2, 2003. PAYLESS agrees to maintain such
directors' and officers' liability insurance coverage or to provide similar
coverage to HOLLAND so that HOLLAND will remain insured under similar coverage
at current levels until December 2, 2003 with respect to the period of time that
HOLLAND served as an officer of PAYLESS. PAYLESS has given HOLLAND a copy of
such policy and will give him a copy of any amendment or rider promptly after it
becomes effective.
8. RELEASE OF LIABILITY
PAYLESS releases HOLLAND of all claims and demands of any kind, known or
unknown, which it may have against HOLLAND as of the Effective Date or which it
may have had at any time before the Effective Date for any acts which HOLLAND
committed or omitted during his employment with PAYLESS. PAYLESS understands
that it is releasing HOLLAND, to the maximum extent permissible by law, from any
liability which HOLLAND may have had to it, known or unknown, at any time up to
and including the Effective Date.
2. HOLLAND'S AGREEMENTS
1. VOLUNTARY RESIGNATION
HOLLAND and PAYLESS acknowledge that HOLLAND does and he hereby does
voluntarily resign his employment as Senior Vice
President-Administration/Secretary, effective as of the Effective Date or such
later date as HOLLAND and PAYLESS shall agree. HOLLAND and PAYLESS acknowledge
that the resignation which is the subject of this Agreement has been effected by
the mutual and amicable agreement of both parties. Notwithstanding the foregoing
HOLLAND will, at PAYLESS' request, provide transitional advisory services to
PAYLESS for a period ending April 30, 1998. Such service will be performed
without compensation other than reimbursement of business expenses. The hours
(if any) during which HOLLAND
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performs such transitional advisory services on any given day shall be
determined by him, although he will use reasonable efforts to respond timely to
accommodate the reasonable requests of PAYLESS for his services.
2. RELEASE OF LIABILITY
HOLLAND releases PAYLESS from the terms of the Control Agreement and
acknowledges that further obligations of HOLLAND and PAYLESS in that Control
Agreement are extinguished upon execution of this Agreement, except as
specifically noted herein. HOLLAND understands that he is releasing PAYLESS to
the maximum extent permissible by law, from any liability which HOLLAND believes
PAYLESS may have had to him, at any time up to and including the date he signs
this Agreement. HOLLAND waives any legal right or claims HOLLAND may have or may
have had, including claims of race, color, national origin, sex or gender, age
or disability discrimination, arising under the Title VII of the Civil Rights
Acts of 1964, the Rehabilitation Act of 1973, the Civil Rights Act of 1866
(Section 1981), the Americans with Disabilities Act of 1990, the Employee
Retirement Income Security Act of 1974, the Age Discrimination in Employment
Act, the Family and Medical Leave Act of 1993, the Missouri Human Rights Act,
the Missouri Workers Compensation Act and the Missouri Service Letter Act and
under any other federal, state, or local statute, regulation, or common law of
any state, including any and all claims in tort or contract; provided, however,
that nothing contained in this Release of Liability shall modify or in any way
detract from the Indemnification provisions of Paragraph A.6 herein.
3. COOPERATION AGREEMENT
HOLLAND also agrees to cooperate and assist PAYLESS in the investigation
and handling of any actual or threatened court action, arbitration or
administrative proceeding or dispute involving any matter that arose during
HOLLAND's employment (including, but not limited to, testifying in deposition
and/or court and providing information to PAYLESS). PAYLESS acknowledges and
agrees that it is responsible for any and all expenses (including costs and
attorneys' fees) that HOLLAND may incur in connection with any such proceeding.
4. ADEQUACY OF CONSIDERATION
HOLLAND acknowledges that the sum paid by PAYLESS under this Agreement is
adequate consideration for HOLLAND's execution of this Agreement, and further
acknowledges that the sum is in excess of the amounts to which he would be
entitled under the existing Control Agreement, policies or practices of PAYLESS.
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3. OTHER AGREEMENTS
1. NON-DISPARAGEMENT
HOLLAND and PAYLESS acknowledge and agree that disparaging or critical
statements made by HOLLAND about PAYLESS or its board members, officers and
employees or disparaging statements made by board members or senior officers of
PAYLESS about HOLLAND would be uniquely detrimental to the interests of both
parties. Therefore, HOLLAND agrees to refrain from making such disparaging or
critical statements about PAYLESS, or its board members, officers, and employees
of PAYLESS, and PAYLESS agrees that PAYLESS' board members and senior executive
officers will refrain from making such disparaging or critical statements about
HOLLAND. All other provisions of this Agreement notwithstanding, PAYLESS agrees
that any statements made by HOLLAND during any testimony given by him as part of
any deposition, court hearing, trial, arbitration hearing or similar proceeding,
shall not be considered a disparaging or critical statement and HOLLAND agrees
that any statements made by PAYLESS or its board members, officers, and
employees of PAYLESS during any testimony given by any of them as part of any
deposition, court hearing, trial, arbitration hearing, or similar proceeding,
shall not be considered a disparaging or critical statement.
2. NO ADMISSION OF LIABILITY
HOLLAND acknowledges that this Agreement shall not in any way be construed
as an admission by PAYLESS of any liability on the part of PAYLESS, and that all
such liability is expressly denied by PAYLESS. Likewise, PAYLESS acknowledges
that this Agreement shall not in any way be construed as an admission by HOLLAND
of any liability on the part of HOLLAND and that all such liability is expressly
denied by HOLLAND.
3. VOLUNTARY NATURE OF AGREEMENT AND ADVICE OF COUNSEL
HOLLAND acknowledges that he has read this Agreement and any attached
schedules, understands their terms, and signs the Agreement voluntarily of his
own free will, without coercion or duress, and with full understanding of the
significance and binding effect of the Agreement. HOLLAND has consulted with his
attorney before signing this Agreement. HOLLAND further acknowledges that he has
been represented by counsel with respect to his pending and potential claims and
has thoroughly discussed all aspects of this Agreement with his attorney.
4. CONSIDERATION PERIOD AND REVOCATION
HOLLAND received this Agreement on January 23, 1998. HOLLAND acknowledges
that he has had a reasonable time, and has had adequate opportunity to consider
the terms of the Agreement and whether or not to enter into the Agreement.
HOLLAND has twenty-one (21) calendar days, after the date HOLLAND received the
Agreement, within which to consider the
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Agreement, although he may sign and deliver it to PAYLESS sooner if he desires.
HOLLAND may revoke the Agreement by delivering a written notice of revocation to
Xxxxxx Iennacaro, Vice President of Human Resources, within seven (7) calendar
days after HOLLAND signs the Agreement. The provisions of this Agreement will
become effective and enforceable on the eighth (8th) calendar day following the
date HOLLAND signs the Agreement.
5. BINDING EFFECT
This Agreement will be binding upon HOLLAND and his heirs, administrators,
representatives, executors, successors and assigns, and will inure to the
benefit of PAYLESS and its successors and assigns. Similarly, this Agreement
will be binding on PAYLESS, its officers, agents and successors in interest and
assigns and will inure to the benefit of HOLLAND and his heirs, administrators,
representatives, executors, successors and assigns.
6. NEWS RELEASES
PAYLESS agrees that before it makes any public announcements concerning the
resignation of HOLLAND in any newspaper, trade publication, radio, television,
or other form of public communication, it will submit such a prepared
announcement to HOLLAND for his review and approval. No such announcement will
be made without the prior approval of HOLLAND. HOLLAND agrees that his approval
shall not be unreasonably refused.
7. GOVERNING LAW
This Agreement will be interpreted and enforced in accordance with the laws
of the State of Missouri.
8. SEVERABILITY
Should any provision of this Agreement be declared or determined by a court
of competent jurisdiction to be invalid or otherwise unenforceable, the
remaining parts, terms and provisions shall continue to be valid, legal and
enforceable, and will be performed and enforced to the fullest extent permitted
by law.
9. COMPLETE AGREEMENT
Except for the Indemnification Provisions and rights and obligations under
directors' and officers' liability insurance policy referred to in paragraphs
A.6 and A.7, which this Agreement merely supplements but which otherwise remain
in full force and effect, this Agreement contains the entire agreement between
HOLLAND and PAYLESS with respect to the subject matter hereof and, except as
otherwise noted herein supersedes all prior agreements or understandings between
them. No change or waiver of any part of this Agreement will be valid unless in
writing and signed by both HOLLAND and PAYLESS.
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10. ARBITRATION
The parties hereby agree that any dispute arising hereunder or any claim
for breach or violation of any item hereof shall be submitted to arbitration
pursuant to the rules of the American Arbitration Association ("AAA") to a panel
of three arbitrators selected by mutual agreement of the parties or, if the
parties do not mutually agree on the arbitrators, in accordance with the rules
of the AAA. The award determination of the arbitrators shall be final and
binding upon the parties without right of appeal. Either party shall have the
right to bring an action in any court of competent jurisdiction to enforce this
paragraph and to enforce any arbitrators' award rendered pursuant to this
paragraph. The venue for all proceedings in arbitration hereunder and for any
judicial proceedings related thereto shall be in Kansas City, Missouri.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year set forth first above written.
PAYLESS CASHWAYS, INC. X. X. XXXXXXX, XX.
By: /s/ Xxxxxx X. Xxxxxx /s/ X. X. Xxxxxxx, Xx.
------------------------ -------------------------
Name: Xxxxxx X. Xxxxxx Date: January 23, 1998
Title: Acting Chief Executive Officer
Date: January 23, 1998
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Schedule I to X. X. Xxxxxxx, Xx. Xxxxxxxxx Agreement
Lump sum payment computation
Severance Period Base Salary $242,000.00
(12 months at rate
in effect on 7/21/97)
Unpaid Retention Bonus $36,300.00
(50% of 30% of $242,000)
Unused Vacation Days
(4 weeks pay at $242,000 per annum) $18,615.38
Additional Lump Sum Payment pursuant to
P. A(2)(a)(ii) $10,000.00
Additional Retirement Benefit, as [to be determined]
described in P. A(2)(c)
Automobile Allowance $8,158.00
----------
Total (exclusive of Additional Retirement Benefit $315,073.38
described in P. A(2)(c)
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Schedule II to X. X. Xxxxxxx, Xx. Xxxxxxxxx Agreement
Benefit Continuation
Group Medical/Vision
Group Dental
Long Term Disability and Supplemental Disability (limited to a maximum monthly
benefit of $5,000.00)
Combined Group Life Insurance and Supplemental Death Benefits of $810,000 during
the Severance Period, and a $270,000 life insurance policy thereafter
Annual
Physical in early 1998 1997 Tax Preparation ($1,000 limit)
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Schedule III to X. X. Xxxxxxx, Xx. Xxxxxxxxx Agreement
CERTIFICATE OF INCORPORATION
INDEMNIFICATION PROVISION
ARTICLE VIII
INDEMNIFICATION; INSURANCE
The directors and officers of the corporation shall be indemnified to the
maximum extent permitted by law. Without limiting the foregoing, each person who
was or is made a party or is threatened to be made a party to any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation, or is or was serving, at the request of the corporation, as
a director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the corporation, to the fullest extent which it is empowered to
do so by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding, including attorneys' fees, and such indemnification shall inure
to the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in the bylaws of the corporation, the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the board of directors of the corporation. Expenses incurred
by a director or officer of the corporation in defending a civil or criminal
action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it is ultimately determined that the director or officer is not entitled to be
indemnified by the corporation as authorized by the Delaware General Corporation
Law. The foregoing right of indemnification and advancement of expenses shall be
a contract right and shall in no way be exclusive of any other rights of
indemnification and advancement of expenses to which any such director or
officer may be entitled by law, agreement, vote of stockholders or of
disinterested directors or otherwise. All rights of indemnification and
advancement of expenses hereunder shall survive any repeal or modification of
this Article VIII as to any set of facts or proceeding then existing, shall
continue as to a person who has ceased to be an officer or director and shall
inure to the benefit of the heirs, executors and administrators of such a
director or officer. The procedures with respect to indemnification shall be set
forth in the bylaws of the corporation.
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The corporation may maintain insurance, at its expense, to protect itself
and any person who is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not the corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
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Schedule IV to X. X. Xxxxxxx, Xx. Severance Agreement
BYLAWS
INDEMNIFICATION PROVISIONS
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the corporation or advance of
expenses under Article VIII of the certificate of incorporation shall be made
promptly, and in any event within thirty days, upon the written request of the
director or officer. If a determination by the corporation that the director or
officer is entitled to indemnification pursuant to this Article V is required,
and the corporation fails to respond within sixty days to a written request for
indemnity, the corporation shall be deemed to have approved the request. If the
corporation denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within thirty days, the right to indemnification or advances as granted
by this Article V shall be enforceable by the director or officer in any court
of competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also be indemnified by the
corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any, has
been tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the corporation to indemnify the claimant for the amount claimed, but the burden
of such defense shall be on the corporation. Neither the failure of the
corporation (including its board of directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its board of directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 2. Article Not Exclusive. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision or the certificate of incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
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Section 3. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article V and who are or were employees or agents
of the corporation, or who are or were serving at the request of the corporation
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the board of directors. Expenses (including attorneys'
fees) incurred by employees and agents may be paid upon such terms and
conditions, if any, as the board of directors deems appropriate; provided, that
such expenses may only be paid by the corporation in advance of a proceeding's
final disposition upon receipt of an undertaking by or on behalf of such
employee or agent to repay such amount if it shall ultimately be determined that
he or she is not entitled to be indemnified by the corporation.
Section 4. Contract Rights. The provisions of this Article V shall be
deemed to be a contract right between the corporation and each director or
officer who serves in any such capacity at any time while this Article V and the
relevant provisions of the Delaware General Corporation Law or other applicable
law are in effect, and any repeal or modification of this Article V or any such
law shall not affect any rights or obligations then existing with respect to any
state of facts or proceeding then existing.
Section 5. Merger or Consolidation. For purposes of this Article V,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is a
director, officer, employee or agent of such constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article V
with respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had
continued.
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Schedule V to X. X. Xxxxxxx, Xx. Xxxxxxxxx Agreement
INDEMNIFICATION AGREEMENT
