LILLY INDUSTRIES, INC.
CHANGE IN CONTROL AGREEMENT
ALAIN DEBLANDRE
This CHANGE IN CONTROL AGREEMENT, dated as of February 3, 2000,
evidences an agreement by and between LILLY INDUSTRIES, INC., a Canadian
corporation organized under the laws of the Province of Ontario, having its
principal executive offices at 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxx ("Xxxxx Xxxxxx"),
a subsidiary of Lilly Industries, Inc., an Indiana corporation having its
principal executive offices at 000 Xxxx 000xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000 (the "Company") and ALAIN DEBLANDRE, an individual residing at 0000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 ("Executive").
Background
A. The Board of Directors of the Company has determined that it is in
the best interests of the Company and its shareholders to assure that the
Company and Lilly Canada will have the continued undivided time, attention,
loyalty, and dedication of Executive, notwithstanding the possibility, threat or
occurrence of a Change in Control (as defined in subsection 3(c) hereof) of the
Company.
B. The Board believes it is imperative to diminish the inevitable
distraction of Executive by virtue of the personal uncertainties and risks
created by pending or threatened Change in Control and to encourage Executive's
full undivided time, attention, loyalty, and dedication to the Company and Lilly
Canada currently and in the event of any threatened or pending Change in
Control.
C. By this Agreement, the Board intends upon a Change in Control to
assure Executive with compensation and benefits arrangements if his employment
terminates as a result of a Change in Control which are competitive with those
of other corporations similarly situated to the Company. Therefore, in order to
accomplish these objectives, the Board has caused the Company to enter into this
Agreement.
D. In reliance on this Agreement, Executive is willing to continue his
employment with Lilly Canada on the terms agreed to by Executive and Lilly
Canada from time to time.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Undertaking. Subject to Xxxxxxx 0, Xxxxx Xxxxxx agrees to pay or
provide to Executive the termination benefits specified in Section 2 hereof if:
(a) within three (3) years after, a Change in Control (as defined in subsection
3(c) hereof): either (i) the Company or Lilly Canada terminates the employment
of Executive before age sixty-five (65) for any reason other than Good Cause (as
defined in subsection 3(h) hereof), death, Disability (as defined in subsection
3(g) hereof), or (ii) Executive voluntarily terminates his employment for Good
Reason (as defined in subsection 3(i) hereof), or (b) the employment of
Executive is terminated before such a Change in Control, or an anticipated
Change in Control, and Executive reasonably demonstrates that such termination
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occurred in connection with, or in anticipation of such a Change in Control
(whether or not such Change in Control actually occurs).
2. Termination Benefits. Subject to Section 4, if Executive is entitled
to termination benefits pursuant to Section 1 hereof, Lilly Canada shall pay or
provide the following:
(a) Severance Pay. Lilly Canada shall pay to Executive, in a
cash lump sum, an amount equal to the sum of:
(1) two (2) times the sum of (i) plus (ii) below:
(i) Executive's annual base salary at
the rate in effect as of the date of
termination of employment (or, at
Executive's election, at the rate in
effect on any date during the period
beginning on the first day of the
month immediately prior to the
occurrence of events constituting
"Good Reason" or a Change in
Control), plus
(ii) an amount equal to the targeted
variable compensation of Executive
for the year in which such
termination occurs (or, if
Executive is advised of the amount
of such targeted amount after
events specified herein which
constitute "Good Reason," or the
targeted amount constitutes "Good
Reason," at Executive's election,
the variable compensation paid for
any fiscal year for which Executive
has actually received a variable
compensation payment either in the
twelve (12) months before a Change
in Control or any fiscal year after
a Change in Control), plus ----
(2) two (2) times an amount equal to any
contributions the Company or Lilly Canada
would have otherwise made on Executive's
behalf to the Company's Employee Stock
Purchase Plan during the twelve (12) months
following Executive's date of termination,
had Executive's employment and/or the plan
or amounts contributed thereto by the
Company or Lilly Canada on Executive's
behalf not been reduced or terminated (or,
at Executive's election, two (2) times an
amount equal to any contributions the
Company or Lilly Canada made on Executive's
behalf to such plan for any plan year ending
either in the twelve (12) months before a
Change in Control or any fiscal year after a
Change in Control).
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Lilly Canada shall make such lump sum payments within an
administratively reasonable period (but not to exceed sixty (60) days)
after the Release Effective Date (as defined in Section 4(a) hereof).
Such payments shall be in addition to any salary, vacation pay,
variable compensation or benefits earned or accrued by Executive for
services rendered prior to his termination.
(b) Health, Accident, and Life Insurance and Disability
Benefits. The Executive shall be entitled to continue for two (2) years
following the date of termination, at the Company's or Lilly Canada's
cost, Executive's coverage under the Company's or Lilly Canada's group
insurance, health and accident, life, and disability benefit plans in
which Executive was entitled to participate immediately prior to the
Change in Control provided that continued participation is possible
under the general terms and provisions of such plans, programs, and
arrangements; provided, however, such continuation coverage shall run
concurrently with any continuation coverage otherwise available to
Executive under the terms of such plans. In the event Executive's
participation in any such plan, program, or arrangement is barred, or
any such plan, program, or arrangement is discontinued or the benefits
thereunder are materially reduced, the Company shall arrange to provide
Executive with benefits substantially similar to those which Executive
would have otherwise been entitled to receive under such plans,
programs, and arrangements prior thereto at the Company's cost.
(c) Acceleration of Stock Options. The Company shall
accelerate and make immediately exercisable any and all unmatured stock
options (whether or not such stock options are otherwise exercisable)
which Executive then holds to acquire securities from the Company;
provided, however, that Executive shall have ninety (90) days after
such termination of employment to exercise any outstanding stock
options and after such ninety (90) days any and all unexpired stock
options shall lapse; and, provided, further, however, any tax benefit
provisions with respect to any stock options shall apply to any and all
unmatured stock options (whether or not such stock options are
otherwise exercisable).
3. Definitions. When the initial letter of a word or phrase is
capitalized herein, such word or phrase shall have the meaning hereinafter set
forth:
(a) "Affiliated Employer" means:
(1) a member of a controlled group of
corporations (as defined in Code Section
414(b)) of which the Company is a member; or
(2) an unincorporated trade or business which is
under common control (as defined in Code
Section 414(c)) with the Company.
(b) "Board" means the board of directors of Lilly Industries,
Inc, an Indiana corporation.
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(c) "Change in Control" shall be deemed to have occurred if:
(1) the Company shall become a party to an
agreement of merger, consolidation, or other
reorganization pursuant to which the Company
will be a constituent corporation and the
Company will not be the surviving or
resulting corporation, or which will result
in less than 50% of the outstanding voting
securities of the surviving or resulting
entity being owned by the former
shareholders of the Company;
(2) the Company shall become a party to an
agreement providing for the sale or other
disposition by the Company of all or
substantially all of the assets of the
Company to any individual, partnership,
joint venture, association, trust,
corporation, or other entity which is not an
Affiliated Employer; or
(3) the acquisition by any individual, entity,
or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended from time
to time) of an aggregate of more than 20% of
the combined voting power of the then
outstanding Class A Stock of the Company.
(d) "Committee" means the Compensation Committee of the Board
to which the Board has delegated authority to administer and interpret
this Agreement.
(e) "Company" means Lilly Industries, Inc. and any successors
to Lilly Industries, Inc., an Indiana corporation.
(f) "Confidential Information" means any information not in
the public domain and not previously disclosed to the public by the
Board or management of the Company or an Affiliated Employer with
respect to the products, facilities, methods, trade secrets and other
intellectual property, systems, procedures, manuals, confidential
reports, product price lists, customer lists, financial information,
business plans, prospects, or opportunities of the Company or an
Affiliated Employer, or any information which the Company or an
Affiliated Employer has designated as Confidential Information.
(g) "Disability" means a disability as determined for purposes
of any group disability insurance policy of Lilly Canada in effect for
Executive which qualifies Executive for permanent disability insurance
payments in accordance with such policy. The Committee may require
subsequent proof of continued Disability, prior to the sixty-fifth
(65th) birthday of Executive, at intervals of not less than six (6)
months.
(h) "Good Cause" means: (1) conviction for a felony or
conviction for any crime or offense lesser than a felony involving the
property of the Company or an Affiliated Employer, whether such
conviction occurs before or after termination of employment; (2)
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engaging in conduct that has caused demonstrable and material injury to
the Company or an Affiliated Employer, monetary or otherwise; (3) gross
dereliction of duties or other gross misconduct and the failure to cure
such situation within thirty (30) days after receipt of notice thereof
from the Committee; or (4) the disclosure or use of Confidential
Information to a party unrelated to the Company or an Affiliated
Employer other than in the normal and ordinary performance of service
for the Company or an Affiliated Employer. The determination as to
whether Good Cause exists shall be made by the Committee in good faith.
Notwithstanding anything herein to the contrary, no act or failure to
act of Executive shall be considered to be "Good Cause" under this
Agreement unless it shall be done, or omitted to be done, by Executive
not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company or an Affiliated
Employer.
(i) "Good Reason" means, without Executive's written consent:
(1) a substantial change in Executive's status,
position or responsibilities which does not
represent a promotion from Executive's
status, position or responsibilities as in
effect immediately prior to the Change in
Control; the assignment to Executive of any
material duties or responsibilities which
are clearly inconsistent with Executive's
status, position or responsibilities; or any
removal of Executive from, or failure to
reappoint or reelect Executive to, any of
such positions, except in connection with
the termination of Executive's employment
for Disability, death, Good Cause, or by
Executive other than for Good Reason;
(2) a reduction by Lilly Canada in Executive's
annual 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 Lilly Canada's failure to
increase (within twelve (12) months of
Executive's last increase in annual base
salary) Executive's annual base salary after
a Change in Control in an amount which at
least equals, on a percentage basis, eighty
percent (80%) of the average percentage
increase in annual base salary for all
corporate officers of the Company or Lilly
Canada effected in the preceding twelve (12)
months;
(3) a change by Lilly Canada in the methodology
of computing Executive's bonus under the
Variable Compensation Plan or the
termination of such plan or its replacement
with a plan using a methodology less
favorable to Executive than that used for
any fiscal year for which Executive has
actually received a variable compensation
payment either in the last fiscal year
before a Change in Control or any fiscal
year after a Change in Control;
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(4) if Executive performed his principal duties
at the Company's executive offices in
Indianapolis, Indiana immediately before the
Change in Control, the relocation of the
Company's principal executive offices to a
location outside of the Indianapolis,
Indiana metropolitan area (which consists of
all counties which are contiguous to Xxxxxx
County, Indiana), or if Executive performed
his principal duties at a location other
than the Company's executive offices in
Indianapolis, Indiana immediately before the
Change in Control, the Company's requiring
Executive to be based at any place more than
forty (40) miles distance from the location
which Executive performed his principal
duties prior to a Change in Control, except
for required travel on the Company's
business to an extent substantially
consistent with Executive's business travel
obligations at the time of a Change in
Control;
(5) the failure by Lilly Canada to continue to
provide Executive with benefits (including
any variable compensation program)
substantially similar to, or of
substantially the same aggregate value to
Executive, as those enjoyed by all other
corporate officers of the Company or any
Affiliated Employer from time to time either
before or after a Change in Control;
(6) the failure of the Company or Lilly Canada
to obtain an agreement satisfactory to
Executive (which satisfaction may not be
unreasonably withheld) from any successor or
assign of the Company to assume and agree to
perform this Agreement;
(7) any purported termination of Executive's
employment which is not effected pursuant to
a Notice of Termination satisfying the
requirements of subsection (k) hereof; or
(8) any request by Lilly Canada that Executive
participate in an unlawful act or take any
action constituting a breach of Executive's
professional standard of conduct.
Notwithstanding anything in this subsection to the contrary,
Executive's right to terminate his employment for Good Reason pursuant
to this subsection shall not be affected by Executive's incapacity due
to physical or mental illness.
(j) "Lilly Canada" means Lilly Industries, Inc., a Canadian
corporation organized under the laws of the Province of Ontario.
(k) "Notice of Termination" means a notice which shall
indicate the date on which Executive's employment shall terminate and
the specific termination provision in this
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Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
4. Conditions to Payments and Benefits.
(a) Release of Claims. As a condition of Executive receiving
from Lilly Canada or the Company the payments and benefits provided for
in this Agreement, which payments and benefits Executive is not
otherwise entitled to receive, Executive understands and agrees that he
will be required to execute a release of all claims against the Company
or Lilly Canada (arising out of matters occurring on or prior to such
termination) in the form attached hereto as Exhibit 1 (the "Release").
Executive acknowledges that he has been advised in writing to consult
with an attorney prior to executing the Release, and Executive agrees
that he will consult with his attorney prior to executing the Release.
The Executive and the Company and Lilly Canada agree that Executive has
a period of twenty-one (21) days within which to consider this Release,
and has a period of seven (7) days following the execution of the
Release within which to revoke the Release. The parties also
acknowledge and agree that the Release shall not be effective or
enforceable until the seven (7) day revocation period expires. The date
on which this seven (7) day period expires shall be the effective date
of the Release (the "Release Effective Date").
THE EXECUTIVE AGREES THAT EXECUTION AND DELIVERY TO THE
COMPANY AND LILLY CANADA OF THE RELEASE REQUESTED BY THE COMPANY AND/OR
LILLY CANADA, AND THE PASSAGE OF ALL NECESSARY WAITING PERIODS IN
CONNECTION THEREWITH, SHALL BE A CONDITION TO THE RECEIPT OF ANY
PAYMENT OR BENEFITS TO BE PROVIDED BY THE COMPANY AND LILLY CANADA
UNDER THIS AGREEMENT. IF THE EXECUTIVE ELECTS NOT TO EXECUTE AND
DELIVER TO THE COMPANY AND LILLY CANADA THE RELEASE REQUESTED BY THE
COMPANY AND/OR LILLY CANADA, THE EXECUTIVE SHALL NOT BE ENTITLED TO ANY
PAYMENTS OR BENEFITS UNDER THIS AGREEMENT AND ALL SUCH PAYMENTS AND
BENEFITS SHALL BE FORFEITED.
5. Additional Provisions.
(a) Enforcement of Agreement. The Company and Lilly Canada are
aware that upon the occurrence of a Change in Control, the Board or a
shareholder of the Company and Lilly Canada may then cause or attempt
to cause the Company or Lilly Canada to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the
Company or Lilly Canada to institute, or may institute, litigation
seeking to have this Agreement declared unenforceable, or may take or
attempt to take other action to deny Executive the benefits intended
under this Agreement. In these circumstances, the purpose of this
Agreement could be frustrated. It is the intent of the Company and
Lilly Canada that Executive not be required to incur the expenses
associated with the enforcement of
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Executive's rights under this Agreement by litigation or other legal
action, nor that Executive be bound to negotiate any settlement of
Executive's rights hereunder, because the cost and expense of such
legal action or settlement would substantially detract from the
benefits intended to be extended to Executive hereunder. Accordingly,
if following a Change in Control it should appear to Executive that the
Company or Lilly Canada has failed to comply with any of its
obligations under this Agreement or in the event that the Company or
Lilly Canada or any other person (including the Internal Revenue
Service) takes any action to declare this Agreement void or
unenforceable, or institutes any litigation or other legal action
designed to deny, diminish or to recover from Executive the benefits
entitled to be provided to Executive hereunder, and Executive has
complied with all of his obligations under this Agreement, the Company
and Lilly Canada irrevocably authorizes Executive from time to time to
retain counsel of Executive's choice, at the expense of the Company as
provided in this subsection, to represent Executive in connection with
the initiation or defense of any litigation or other legal action,
whether such action is by or against the Company or Lilly Canada or any
director, officer, shareholder, or other person affiliated with the
Company or Lilly Canada, in any jurisdiction. Notwithstanding any
existing or prior attorney-client relationship between the Company and
such counsel, the Company and Lilly Canada irrevocably consents to
Executive entering into an attorney-client relationship with such
counsel, and in that connection the Company and Lilly Canada and
Executive agree that a confidential relationship shall exist between
Executive and such counsel. The reasonable fees and expenses of counsel
selected from time to time by Executive as herein above provided shall
be paid or reimbursed to Executive by the Company or Lilly Canada on a
regular, periodic basis upon presentation by Executive of a statement
or statements prepared by such counsel in accordance with its customary
practices. Any legal expenses incurred by the Company or Lilly Canada
by reason of any dispute between the parties as to enforceability of or
the terms contained in this Agreement, notwithstanding the outcome of
any such dispute, shall be the sole responsibility of the Company and
Lilly Canada, and the Company and Lilly Canada shall not take any
action to seek reimbursement from Executive for such expenses.
(b) Severance Pay; No Duty to Mitigate. The amounts payable to
Executive under this Agreement shall not be treated as damages but as
severance compensation to which Executive is entitled by reason of
termination of Executive's employment in the circumstances contemplated
by this Agreement, and is inclusive of Executive's entitlement to
termination pay and severance pay under the Employment Standards Act,
R.S.O. 1990, E.14, as amended. The Company and Lilly Canada shall not
be entitled to set off against the amounts payable to Executive any
amounts earned by Executive in other employment after termination of
Executive's employment with Lilly Canada, or any amounts which might
have been earned by Executive in other employment, had Executive sought
such other employment, or any set-off, counterclaim, recoupment,
defense, or any other claim, right, or action which the Company or
Lilly Canada may have against Executive or others.
(c) Notice of Termination. Any purported termination of
employment by Lilly Canada or by Executive shall be communicated by
written Notice of Termination to the other
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party hereto in accordance with subsection 3(k) hereof and shall
provide at least ten (10) business days notice prior to the date of
termination. Solely for purposes of this Agreement, no such purported
termination shall be effective without such Notice of Termination.
(d) Assignment. This Agreement is personal to Executive and
without the prior written consent of the Company and Lilly Canada shall
not be assignable by Executive other than by will or the laws of
descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by Executive's legal representatives. This Agreement
shall inure to the benefit of and be binding upon the Company and Lilly
Canada and their successors and assigns. The Company and Lilly Canada
shall assign this Agreement to any corporation or other business entity
succeeding to substantially all of the business and assets of the
Company by merger, consolidation, sale of assets, or otherwise and
shall obtain the assumption of this Agreement by such successor.
(e) Termination. The Board shall have the right to terminate
this Agreement, for any reason, upon twelve (12) months' written notice
to Executive prior to a Change in Control.
(f) Amendment. The Board shall have the right to amend this
Agreement, for any reason, upon twelve (12) months' written notice to
Executive prior to a Change in Control.
(g) Governing Law. This Agreement shall be governed by and
subject to the laws of the State of Indiana, U.S.A.
(h) Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other
provisions, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision had not been contained herein.
(i) Captions. The captions in this Agreement are for
convenience and identification purposes only, are not an integral part
of this Agreement, and are not to be considered in the interpretation
of any part hereof.
(j) Source of Payment. For purposes of this Agreement,
employment and compensation paid by any direct or indirect subsidiary
of the Company will be deemed to be employment and compensation paid by
the Company.
(k) Notices. Except as specifically set forth in this
Agreement, all notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered in
person or sent by registered or certified mail, postage prepaid,
addressed as set forth above, or to such other address as shall be
furnished in writing by any party to the other.
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(l) Waivers. The Executive's or the Company's or Lilly
Canada's failure to insist upon strict compliance with any provision of
this Agreement or the failure to assert any right Executive or the
Company or Lilly Canada may have hereunder, including, without
limitation, the right of Executive to terminate Executive's employment
for Good Reason, shall not be deemed to be a waiver of such provision
or right, or of any other provision or right of this Agreement.
(m) Non-exclusivity of Right. Nothing in this Agreement shall
prevent or limit Executive's continuing or future participation in any
plan, program, policy or practice provided by the Company or any of its
Affiliated Employers and for which Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as Executive may
have under any contract or agreement with the Company or any Affiliated
Employer. Amounts which are vested benefits or which Executive is
otherwise entitled to receive under any plan, policy, practice or
program of, or any contract or agreement with, the Company or any
Affiliated Employer at or subsequent to the date of termination shall
be payable in accordance with such plan, policy, practice, program,
contract or agreement except as explicitly modified by this Agreement;
provided, however, this Agreement shall be the sole source of any and
all severance benefits that Executive is entitled to receive, and
Executive will not be entitled to participate in, or receive benefits
from, any other severance plan or severance policy or program of the
Company, and Executive shall not be entitled to any severance benefits
other than as identified in this Agreement and Executive hereby waives
any and all rights to any such other severance benefits.
(n) Integration and Counterparts. This Agreement supercedes
all prior agreements between the parties with respect to the matters
covered herein. This Agreement may be signed in any number of
counterparts, each of which shall be deemed to be the original.
6. Guarantee. The Company guarantees the obligations and
performance of Lilly Canada under this Agreement.
IN WITNESS WHEREOF, Executive has executed and, pursuant to the
authorization from its Board, the Company has caused this Agreement to be
executed in its name and on its behalf, all as of the day and year first above
written.
"EXECUTIVE"
-----------------------------------------------------
Alain DeBlandre
"LILLY INDUSTRIES, INC., a Canadian
Corporation"
-----------------------------------------------------
President
"LILLY INDUSTRIES, INC., an Indiana
Corporation"
-----------------------------------------------------
Chairman of the Board
-----------------------------------------------------
Chairman of the Compensation Committee
574258.3-2/21/00 574258.3-2/21/00
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RELEASE OF ALL CLAIMS
In consideration of receiving from LILLY INDUSTRIES, INC., a Canadian
corporation organized under the laws of the Province of Ontario, having its
principal executive offices at 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxx ("Xxxxx Xxxxxx"),
a subsidiary of Lilly Industries, Inc., an Indiana corporation having its
principal executive offices at 000 Xxxx 000xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000 (the "Company"), the payments and benefits provided for in the Change in
Control Agreement, dated as of February 3, 2000, (the "Change in Control
Agreement") between the Company and the undersigned ("Executive"), which
payments and benefits Executive was not otherwise entitled to receive, Executive
unconditionally releases and discharges the Company from any and all claims,
causes of action, demands, lawsuits or other charges whatsoever, known or
unknown, directly or indirectly related to Executive's employment with the
Company, except for a breach of the Company's obligations under the Change in
Control Agreement. The claims or actions released herein include, but are not
limited to, those based on allegations of wrongful discharge, breach of
contract, promissory estoppel, defamation, infliction of emotional distress, and
those alleging discrimination on the basis of race, color, sex, religion,
national origin, age, disability, or any other basis, including, but not limited
to, any claim or action under Title VII of the Civil Rights Act of 1964, the
Employment Standards Act, R.S.O. 1990, E.14, as amended, the National Labor
Relations Act, the Family and Medical Leave Act, the Fair Labor Standards Act or
the Worker Adjustment and Retraining Notification Act, those alleging
discrimination on the basis of race, color, sex, religion, national origin, age,
disability, or handicap or any other prohibited ground of discrimination under
the Human Rights Code, R.S.O. 1990, H.19, as amended, the Age Discrimination in
Employment Act of 1967, the Rehabilitation Act of 1973, the Americans with
Disabilities Act of 1990, the Equal Pay Act of 1963, the Civil Rights Act of
1991, the Employee Retirement Income Security Act of 1974, or any other federal,
state, or local law, rule, ordinance, or regulation as presently enacted or
adopted and as each may hereafter be amended; PROVIDED, HOWEVER, THAT EXECUTIVE
DOES NOT WAIVE RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE DATE OF THIS RELEASE,
OR THAT ARISE EITHER BEFORE OR AFTER THE DATE OF THIS RELEASE, OUT OF CLAIMS FOR
BENEFITS UNDER ANY EMPLOYEE PENSION, WELFARE, OR BENEFIT PLAN OR PROGRAM OF THE
COMPANY OR AS A RESULT OF THE COMPANY'S BREACH OF THE CHANGE IN CONTROL
AGREEMENT.
With respect to any claim that Executive might have under the Age
Discrimination in Employment Act of 1967, as amended:
(i) The Executive's waiver of said rights or claims under the Age
Discrimination in Employment Act of 1967 is in exchange for the consideration
reflected in this Release;
(ii) The Executive acknowledges that he has been advised in writing to
consult with an attorney prior to executing this Release and that he has
consulted with his attorney prior to executing this Release;
Exhibit 1
(iii) The Executive acknowledges that he has been given a period of at
least twenty-one (21) days within which to consider this Release; and
(iv) The Executive and the Company agree that Executive has a period of
seven (7) days following the execution of this Release within which to revoke
the Release.
The parties also acknowledge and agree that this Release shall not be effective
or enforceable until the seven (7) day revocation period expires. The date on
which this seven (7) day period expires shall be the effective date of this
Release.
The Executive further agrees, in consideration of receiving the
payments and benefits provided for in the Change in Control Agreement, not to
initiate or instigate any claims, causes of action or demands against the
Company in any way directly or indirectly related to Executive's employment with
the Company or the termination of his employment except for a breach of the
Company's obligations under the Change in Control Agreement, and Executive
agrees to reimburse, defend, and hold harmless the Company against any such
claims, causes of action or demands.
The Executive agrees that he will not seek, nor be entitled to,
employment with the Company, and hereby waives any future right to consideration
for employment by the Company. The Executive further agrees that if he seeks
employment with the Company in violation of this Agreement and is hired, the
Company shall have the right to immediately and unconditionally terminate his
employment without any reason and without recourse by Executive.
The Executive understands that as used in this Release, the "Company"
includes its past, present and future officers, directors, trustees,
shareholders, parent corporations, employees, agents, subsidiaries, affiliates,
distributors, successors, and assigns, any and all employee benefit plans (and
any fiduciary of such plans) sponsored by the Company, and any other persons
related to the Company.
Alain DeBlandre
Date
WITNESS:
