EXHIBIT 10(m)
TRANSITION AND RETIREMENT AGREEMENT
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This TRANSITION AND RETIREMENT AGREEMENT (the "Agreement") is entered
into as of the 3rd day of February, 2000, by and between XXXXX XXXXXXXX
CORPORATION, a Delaware corporation (the "Company"), and XXXXXXX X. XXXXX (the
"Executive").
WHEREAS, the Executive is currently employed by the Company as
Chairman of the Company's Board of Directors ("Chairman"), President and Chief
Executive Officer ("CEO") pursuant to an Employment Agreement dated as of
September 9, 1996, as amended as of April 1, 1998, between the Company and the
Executive (the "Employment Agreement"); and
WHEREAS, Executive having decided to retire as Chairman, President and
CEO, the Company and Executive desire to enter into the following agreement in
settlement and cancellation, except as otherwise provided herein, of all
existing and prior agreements between them (including the Employment Agreement)
concerning Executive's employment by the Company; and
WHEREAS, the Company desires to ensure a smooth transition of
Executive's duties and responsibilities, to recognize Executive's outstanding
leadership of the Company and to ensure Executive's continued contribution to
the Company during the Transition Period and the Post-Transition Period (as such
terms are hereinafter defined); and
WHEREAS, the Executive is desirous of continuing to serve the Company
during the Transition Period and the Post-Transition Period on the terms and
conditions set forth herein;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Company and the Executive hereby agree as
follows:
1. TRANSITION AND POST-TRANSITION PERIODS. (a) The Company shall
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continue to employ the Executive, and the Executive shall continue to serve
the Company, as Chairman, President and CEO, subject to the terms and
conditions set forth in this Agreement, for a period (the "Transition
Period") commencing as of the date hereof (the "Effective Date") and ending
on March 31, 2000 or such earlier date as the Executive's
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non-interim successor shall have taken office. Upon the end of the
Transition Period, Executive shall step down as Chairman, President and
CEO, as a director of the Company and as an officer and director of all of
the subsidiaries and affiliates of the Company.
(b) Without limiting Executive's duties and responsibilities as
Chairman, President and CEO during the Transition Period, during the
Transition Period and thereafter through July 31, 2000 (the "Post-
Transition Period"), Executive shall reasonably cooperate with the Company
with regard to management transition and succession (including, but not
limited to, reasonably cooperating with the Company in the search for his
successor as CEO and reasonably cooperating with such successor and the
Company in the transition process). Any such services to be performed by
Executive during the Post-Transition Period shall take into consideration
Executive's other obligations and shall not involve unreasonable time or
travel obligations on the part of the Executive. The Company shall
reimburse Executive, in accordance with standard Company policy, for all
expenses incurred by him in connection with performing such services, upon
submission of appropriate documentation by Executive.
2. COMPENSATION DURING TRANSITION PERIOD.
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(a) Base Salary. During the Transition Period, Executive shall
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continue to receive Base Salary at an annual rate of $725,000 ("Base
Salary"), which Base Salary shall be payable in accordance with the
Company's regular payroll practice, as in effect from to time to time.
(b) 1999 and 2000 Bonuses.
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(1) Executive shall be entitled to receive an annual bonus
in respect of the Company's 1999 fiscal year (the "1999 Annual
Bonus"), which 1999 Annual Bonus shall be determined and payable in
accordance with the Company's 1999 Executive Incentive Compensation
Plan and the Company's past practice thereunder, provided that any
right of the Compensation Committee to reduce the amount due shall not
apply.
(2) Unless Executive's employment is terminated for Cause
(as defined in Section 7(c) of the Employment Agreement) or Executive
voluntarily terminates his employment other than for Good Reason (as
such term is defined in Section 3(b) hereof) prior to the end of the
Transition Period, Executive shall be entitled to a pro rata bonus
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in respect of the Company's 2000 fiscal year (the "Pro Rata Bonus")
under the Company's annual bonus plan for such year, based upon the
portion of such year represented by the Transition Period. The Pro
Rata bonus shall be based upon actual performance of the Company for
its 2000 fiscal year, excluding, however, the effects of extraordinary
items as determined by the Committee (as defined in Section 3(a)(5)
hereof), and shall be paid at the time bonuses for such fiscal year
would normally be paid in accordance with the Company's past practice.
(c) Other Benefits. During the Transition Period, Executive shall
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continue to participate in employee benefit plans maintained by the Company
and its affiliates and shall continue to receive such fringe benefits and
perquisites as he was receiving immediately prior to the Effective Date.
Reasonable business expenses incurred by Executive during the Transition
Period shall be reimbursed in accordance with Company policies.
3. COMPENSATION, ETC. FOLLOWING TRANSITION PERIOD OR UPON EARLIER
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TERMINATION. Subject to Executive's compliance with Section 5 hereof, in
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satisfaction of all amounts and benefits to which Executive is or may be
entitled under the Employment Agreement or any compensation or benefit plan
of the Company or any agreement thereunder with respect to Executive,
Executive and the Company agree that:
(a) Upon Executive's termination of employment at the end of the
Transition Period:
(1) Accrued Benefits. Executive shall be entitled to receive
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his Base Salary, benefits and perquisites through the end of the
Transition Period.
(2) Annual Bonuses. Executive shall be entitled to receive the
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1999 Annual Bonus and the Pro Rata Bonus in accordance with Section
2(b) hereof.
(3) Equity Awards.
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(A) Deferred Stock. All then outstanding shares of deferred
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stock which have not previously become vested shall be forfeited and
canceled, except that, with respect to the grant to the Executive of
47,059 deferred shares scheduled to vest on December 31, 2000 (as
reflected in the Deferred Stock Grant Agreement dated as of September
9, 1996, between the Company and Executive (the "Deferred Stock
Agreement")),
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the termination of Executive's employment shall, subject to
Executive's compliance with his obligations under Section 1 hereof, be
treated as a "Protected Termination" within the meaning of Section
5(b) of the Deferred Stock Agreement, such that, as of the end of the
Transition Period, one-twelfth of such deferred shares (or an
aggregate of 3,922 deferred shares) shall vest for each whole or
partial month subsequent to December 1999 during which the Transition
Period remains in effect. The portion of such deferred shares which
becomes so vested shall be payable in shares of common stock of the
Company in accordance with the terms of the Deferred Stock Agreement.
(B) Stock Options. For purposes of the various stock option
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agreements in effect between the Company and the Executive, the
termination of Executive's employment at the end of the Transition
Period shall, subject to Executive's compliance with his obligations
under Section 1 hereof, be treated as a "Retirement," such that all
outstanding stock options granted to Executive, to the extent fully
vested and exercisable at the end of the Transition Period, shall
remain exercisable until the first anniversary of the end of the
Transition Period at which time such options shall expire and cease to
be exercisable (or, in the event of Executive's failure to comply with
such obligations, such options shall expire and cease to be
exercisable three months following the end of the Transition Period,
unless such failure is a basis for a termination for Cause, in which
case such options shall expire and cease to be exercisable as of the
date of Executive's termination of employment for Cause). All
outstanding stock options granted to Executive, to the extent not
fully vested and exercisable at the end of the Transition Period,
shall be forfeited and canceled as of the end of the Transition
Period. A schedule of vested and non-vested stock options, determined
as of March 31, 2000, is annexed hereto as Exhibit A.
(C) Deferred Compensation Plan Shares. For purposes of the
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Company's Deferred Compensation Plan (the "Deferred Compensation
Plan"), the termination of Executive's employment at the end of the
Transition Period shall be treated as a "Retirement", such that
amounts credited, as of the end of the Transition Period, to
Executive's Deferral Account under such Plan in the form of shares of
common stock of the Company shall be treated as follows:
(i) with respect to (X) an aggregate of 143,375.5798 shares
credited to Executive's Deferral Account as of September 30, 1999,
which are attributable to the deferral of Executive's variable
incentive
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awards for the 1996-1998 fiscal years (the "Deferred Bonus Shares"),
and (Y) 4,187.0659 shares credited to Executive's Deferral Account as
of September 30, 1999, which represent "premium shares" attributable
to the deferral of Executive's 1996 variable incentive award (the
"1996 Premium Shares"), the Deferred Bonus Shares and the 1996 Premium
Shares (together with any additional shares credited from October 1,
1999 through the end of the Transition Period which are attributable
to the reinvestment of dividend equivalents with respect to the
Deferred Bonus Shares and the 1996 Premium Shares) shall be delivered
to Executive in accordance with the terms of the Deferred Compensation
Plan and the Executive's outstanding elections thereunder;
(ii) with respect to 8,402.3623 shares credited to Executive's
Deferral Account as of September 30, 1999, which represent "premium
shares" attributable to the deferral of Executive's 1997 variable
incentive award (the "1997 Premium Shares"), the 1997 Premium Shares
(together with any additional shares credited from October 1, 1999
through the end of the Transition Period which are attributable to the
reinvestment of dividend equivalents with respect to the 1997 Premium
Shares) shall, subject to Executive's compliance with his obligations
under Section 1 hereof, become vested and nonforfeitable as of the end
of the Transition Period and shall be delivered to Executive in
accordance with the terms of the Deferred Compensation Plan and the
Executive's outstanding elections thereunder;
(iii) with respect to 8,916.9089 shares credited to Executive's
Deferral Account as of September 30, 1999, which represent "premium
shares" attributable to the deferral of Executive's 1998 variable
incentive award (the "1998 Premium Shares"), the 1998 Premium Shares
(together with any additional shares credited from October 1, 1999
through the end of the Transition Period which are attributable to the
reinvestment of dividend equivalents with respect to the 1998 Premium
Shares) shall be forfeited and canceled as of the end of the
Transition Period.
Executive shall not make any election under the Deferred Compensation
Plan to reallocate any amounts credited to his Deferred Account
thereunder to any alternative investment vehicle.
(4) Retirement Benefits. The Retirement Benefit (as defined
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in the Employment Agreement) to which Executive shall be entitled upon
his termination of employment at the end of the Transition Period
shall be the Retirement Benefit determined pursuant to Section 6(c) of
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the Employment Agreement. An estimate of such Retirement Benefit as of
March 31, 2000 (based upon certain assumptions as to discount rates)
is attached hereto as Exhibit B. The actual Retirement Benefit
determined pursuant to said Section 6(c) (including the lump sum
equivalent thereof determined pursuant to Section 6(d) of the
Employment Agreement) shall be computed by Xxxxxxx X. Xxxxxx
("Mercer"), consultants to the Company, at the Company's expense, as
of the end of the Transition Period in accordance with the methodology
utilized in said Exhibit B, except that, in determining present
values, Mercer shall utilize the discount rate in effect at January
31, 2000 (or such earlier date on which the Transition Period ends),
as set forth in the footnote to said Exhibit B. Such calculation shall
be performed by Mercer within ten days after the end of the Transition
Period and shall be provided (with backup) to the Company and the
Executive. So long as the appropriate discount rate has been utilized,
such computation by Mercer shall be binding and conclusive on the
parties hereto, except for mathematical errors. Executive's
entitlement to the Retirement Benefit shall be subject to the
provisions of Section 12(f)(ii) of the Employment Agreement. In
accordance with Section 6(d) of the Employment Agreement, the amount
of the Retirement Benefit hereunder shall be paid to Executive in a
lump sum within five days after delivery of Xxxxxx'x final computation
of the Retirement Benefit (but in no event prior to the effective date
of the Release executed by the Executive, as contemplated by Section 5
hereof).
(5) Additional Payment. Subject to Executive's compliance with
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his obligations under Section 1 hereof and subject to the provisions
of Section 12(f)(ii) of the Employment Agreement, the Company shall
pay the Executive an aggregate amount equal to the excess of (1) the
lump sum equivalent (determined pursuant to Section 6(d) of the
Employment Agreement) of the Retirement Benefit which would have been
payable under Section 6(b) of the Employment Agreement (calculated as
of the end of the Transition Period as if Executive were entitled to
such Retirement Benefit) over (2) the lump sum Retirement Benefit
payable pursuant to Section 3(a)(4) hereof (such excess being
hereinafter referred to as the "Payment"). An estimate of the Payment
as of March 31, 2000 (based upon certain assumptions as to discount
rates) is attached hereto as Exhibit C. The actual amount of the
Payment shall be determined by Mercer, at the Company's expense, in
accordance with the methodology utilized in said Exhibit C, except
that, in determining present values, Mercer shall utilize the discount
rate in effect at January 31, 2000 (or such earlier date on which the
Transition Period ends), as
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set forth in the footnote to said Exhibit C. Such calculation shall be
performed by Mercer within ten days after the end of the Transition
Period and shall be provided (with backup) to the Company and the
Executive. So long as the appropriate discount rate has been utilized,
such computation by Mercer shall be binding and conclusive on the
parties hereto, except for mathematical errors. The portion of the
Payment in excess of one million dollars ($1,000,000) shall be paid to
Executive in a lump sum within five days after delivery of Xxxxxx'x
final computation of the Payment (but in no event prior to the
effective date of the Release executed by the Executive, as
contemplated by Section 5 hereof). The remaining one million dollars
($1,000,000), together with interest thereon from the end of the
Transition Period to the date of payment at the rate announced by Bank
of America as its "prime rate" as in effect at January 31, 2000 (or
such earlier date on which the Transition Period ends) (the "Prime
Rate") (such one million dollars plus interest being referred to as
the "Holdback Amount"), shall be paid to Executive, as soon as
practicable following the end of the Post-Transition Period, unless a
two-person committee (the "Committee") of Company directors,
consisting of Messrs. Xxxxxx Xxxx and Xxxxxxx Xxxxxx (or, in the event
of the death or incapacity or resignation of either or both of such
individuals, another Company director or directors acceptable to the
Executive), shall have theretofore determined in good faith that the
Executive failed to perform his obligations under Section 1 of this
Agreement or materially failed to comply with the provisions of
Section 12(c)(i) of the Employment Agreement. Any determination of
nonpayment by the Committee shall be delivered in writing by the
Committee to the Company and the Executive within fifteen (15) days
after such determination is made (but in no event later than fifteen
(15) days after the end of the Post-Transition Period) and shall
specify with detail the reasons therefor. If the Executive challenges
the Committee's determination, resolution of the dispute shall be by
arbitration in accordance with Section 13(g) of the Employment
Agreement. In the event that, prior to the end of the Post-Transition
Period, the Company (to which actions of any director shall be
attributed for purposes of Section 12(c)(ii) of the Employment
Agreement, without otherwise limiting the meaning of such Section)
materially breaches its obligations under Section 12(c)(ii) of the
Employment Agreement, then the Company shall immediately pay the
Holdback Amount to the Executive and such amount shall no longer be
subject to any further risk of forfeiture. Any assertion by the
Executive of any such breach by the Company shall be delivered in
writing by the Executive to the Company and the Committee within
fifteen (15) days after Executive has actual
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knowledge of the event or events giving rise to such assertion and
shall specify in detail the basis therefor. If the Company challenges
Executive's assertion as provided in the prior sentence, resolution of
the dispute shall be by arbitration in accordance with Section 13(g)
of the Employment Agreement, provided that, if Executive is successful
in such arbitration, the Holdback Amount shall not be subject to
forfeiture after the date of the Company's material breach of its
obligations under Section 12(c)(ii) of Employment Agreement and the
Holdback Amount shall become payable only after determination of the
arbitrator (or, if earlier and the Executive otherwise qualifies to
receive the Holdback Amount, promptly following the end of the Post-
Transition Period).
(6) No Rights to Severance, etc. Executive shall have no right
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to receive (and the Company shall be under no obligation to pay) any
severance, separation pay, salary continuation or similar benefits
(including, but not limited to, the severance benefits set forth in
Section 7(d)(i) of the Employment Agreement), nor shall Executive be
entitled to receive (nor shall the Company be under any obligation to
provide) any of the benefits contemplated by Sections 7(d)(ii),
7(d)(iii) or 7(d)(v) of the Employment Agreement.
(b) In the event that, prior to the end of the Transition Period,
Executive's employment is terminated by the Company for Cause (as defined
in Section 7(c) of the Employment Agreement), or Executive voluntarily
terminates his employment (other than for Good Reason, as defined in
Section 7(e) of the Employment Agreement, except that (1) the actions
contemplated by Section 1(a) hereof shall not constitute Good Reason) and
(2) any claim by the Executive that Good Reason exists shall be based
solely on acts or omissions occurring on or after the Effective Date),
Executive's rights shall be limited to (1) his receipt of Base Salary,
benefits and perquisites to the date of termination, (2) payment of the
Retirement Benefit determined as of the date of termination pursuant to
Sections 6(c) and 6(d) of the Employment Agreement, (3) treatment of
Executive's vested and exercisable stock options in accordance with the
parenthetical language in Section 3(a)(3)(B) hereof, and (4) such other
payments and benefits as are determined in accordance with the terms of the
applicable agreements (other than the Employment Agreement), plans,
policies and practices of the Company.
(c) In the event that prior to the end of the Transition Period,
Executive dies while in the employ of the Company, Executive's employment
is terminated by the Company without Cause, or Executive voluntarily
terminates his employment for Good Reason (as defined in paragraph (b)
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above), Executive shall be treated as if he had remained in employment
until March 31, 2000, and the rights of Executive (or, in the event of his
death, his beneficiary or estate) shall be as set forth in Section 3(a)
above.
(d) Notwithstanding the preceding paragraphs (a) through (c) of this
Section, in the event that, prior to the end of the Transition Period and
while Executive is (or is deemed to be) in the employ of the Company, (1) a
Change in Control (as defined in Section 8(g) of the Employment Agreement)
shall occur or (2) a definitive agreement (a "Change in Control Agreement")
is entered into by the Company consummation of the transaction contemplated
by which would constitute a Change in Control, then (A) as of the date of
such Change in Control (but in the case of a Change in Control described in
clause (i) of Section 8(g) of the Employment Agreement which results from
determining beneficial ownership without regard to the sixty day period
referred to in Rule 13d-3 under the Securities Exchange Act of 1934 (a
"Special Change in Control"), as of the date of consummation of the
transaction contemplated by such Special Change in Control) but in any
event not later than March 31, 2000, Executive's employment shall be deemed
to have terminated under circumstances entitling him to the payments and
benefits set forth in Section 8(d) (and, if applicable, Section 9(b) of the
Employment Agreement, (B) Executive shall have no further obligations under
Section 1 hereof after consummation of such Change in Control (or, in the
event of a Special Change in Control or in the event of the Company enters
into a Change in Control Agreement, after consummation of the transaction
contemplated by such Special Change in Control or Change in Control
Agreement), and (C) in lieu of the payments and benefits otherwise provided
under this Agreement and subject to the succeeding provisions of this
paragraph, Executive's rights shall be limited to receipt of the payments
and benefits set forth in said Section 8(d) (and, if applicable, Section
9(b), provided, however, that in the event of a Special Change in Control
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or in the event the Company enters into a Change in Control Agreement, the
Company's obligation to make or provide the foregoing payments and benefits
shall apply only upon consummation of the transaction contemplated by the
Special Change in Control or Change in Control Agreement (as the case may
be) and in the event such transaction is abandoned or not otherwise
consummated for any reason, then this paragraph (d) shall not apply and
Executive's rights shall be determined pursuant to paragraph (a), (b) or
(c) of this Section 3, whichever paragraph is applicable. Notwithstanding
the foregoing, pending consummation of any such transaction, the amounts
and benefits to which Executive is otherwise entitled under paragraph (a),
(b) or (c) of this Section 3 shall be paid or provided in accordance with
the provisions of the applicable paragraph (and Executive shall be under no
obligation to return any such amounts or benefits received to which he is
otherwise entitled),
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subject to supplemental amounts and benefits being paid or provided by the
Company under Sections 8(d) and 9(b) of the Employment Agreement upon
consummation of such transaction, it being understood, however, that the
Company shall be under no obligation to make payments or provide benefits
under said Section 8(d) or 9(b) to the extent such payments or benefits are
duplicative of payments or benefits theretofore made or provided to
Executive hereunder. Further, nothing herein shall limit Executive's rights
which arise under any Company plan or grant upon the occurrence of a Change
in Control prior to the end of the Transition Period while Executive is in
the employ of the Company.
(e) Executive shall not be deemed to have failed to comply with his
obligations under Section 1 hereof, nor shall Executive be deemed to have
voluntarily terminated his employment, solely by reason of Executive being
unable to perform any obligations hereunder as a result of mental or
physical incapacity. Further, such inability shall not serve as the basis
for a termination for Cause hereunder.
(f) The Company may assert a violation by Executive of his
obligations under Section 1 this Agreement only if such assertion has been
approved by the Committee.
4. PUBLIC ANNOUNCEMENTS. Executive and the Company shall cooperate
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with each other in the preparation and issuance of any press release or
other public announcement pertaining to Executive's plans to retire.
5. RELEASE. In connection with Executive's termination of
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Employment and as a condition to any payments or benefits hereunder,
Executive or his personal or legal representative shall execute a Release,
in the form of Exhibit D hereto.
6. SUCCESSORS.
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(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the
Executive 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 estate and legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
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7. APPLICATION OF CERTAIN PROVISIONS OF EMPLOYMENT AGREEMENT. The
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provisions of Sections 7(c), 7(e), 8(d), 8(g), 9, 10 and 12 (other than
paragraph (e) thereof) of the Employment Agreement are incorporated herein
by reference as if fully set forth herein. The parties further agree to
submit all controversies, claims and matters of difference in any way
related to this Agreement, other than the seeking of injunctive relief
pursuant to Section 12(f) of the Employment Agreement as incorporated
herein, to arbitration in accordance with the provisions of Section 13(g)
of the Employment Agreement (which provisions are incorporated herein by
reference as if fully set forth herein).
8. LEGAL FEES. In the event of a dispute between Executive and the
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Company with respect to any of Executive's rights under this Agreement, the
Company shall reimburse Executive for any and all reasonable legal fees and
related expenses incurred by him in connection with enforcing such rights,
including the costs of arbitration, if and to the extent provided by the
arbitral tribunal resolving such dispute, or if such dispute is resolved
without arbitration, if Executive is successful in enforcing any material
rights originally disputed by the Company. The Company shall pay
Executive's reasonable legal fees (but not in excess of $30,000) incurred
in connection with entering into this Agreement.
9. MISCELLANEOUS.
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(a) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Colorado without reference to
principles of conflict of laws.
(b) Entire Agreement. Except to the extent the context otherwise
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requires or as otherwise provided herein, this Agreement shall supersede
any and all existing employment, change-in-control or severance agreements
between Executive and the Company or any of its affiliates (including, but
not limited to, the Employment Agreement) and contains the entire
understanding of the parties with respect to the subject matter hereof.
There are no restrictions, agreements, promises, warranties, covenants or
undertakings between the parties with respect to the subject matter herein
other than those expressly set forth herein. ANY AMENDMENT HERETO SHALL BE
IN WRITING AND SHALL NOT BE EFFECTIVE UNLESS AND UNTIL SIGNED BY EXECUTIVE
AND THE CHAIRMAN OF THE COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS OF
THE COMPANY AND ATTESTED TO BY THE SECRETARY OF THE COMPANY.
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(c) No Waiver. The failure of a party to insist upon strict adherence
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to any term of this Agreement on any occasion shall not be considered a
waiver of such party's rights or deprive such party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
(d) Severability. It is expressly understood and agreed that although
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Executive and the Company consider the restrictions contained in this
Agreement to be reasonable, if a final judicial determination is made by a
tribunal of competent jurisdiction that the time or territory or any other
restriction contained in this Agreement is an unenforceable restriction
against Executive, the provisions of this Agreement shall not be rendered
void but shall be deemed amended to apply as to such maximum time and
territory and to such maximum extent as such tribunal may determine or
indicate to be enforceable. Alternatively, if any tribunal of competent
jurisdiction finds that any restriction contained in this Agreement is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein. In the event that any one or more of
the provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not be affected thereby.
(e) Withholding Taxes. The Company may withhold from any and all
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amounts payable under this Agreement such Federal, state and local taxes as
may be required to be withheld pursuant to any applicable law or
regulation.
(f) Counterparts. This Agreement may be signed in several
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counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
10. SURVIVAL. The respective rights of the parties and their
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successors and permitted assigns under the provisions of Sections 3, 7, 8
and 9 hereof (and the associated provisions of the Employment Agreement
referred to therein or incorporated herein by reference) shall survive the
expiration of the Transition Period to the extent necessary to give effect
to such provisions.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
XXXXX XXXXXXXX CORPORATION
ATTEST By: /s/ Xxxx Xxxxxxx
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Chairman: Compensation
Committee
/s/ Xxxx Xxxxxxx
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Corporate Secretary
/s/ X. X. Xxxxx
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Executive
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Exhibit A
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Stock Options
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Grant Date Vesting Status at 3/31/2000
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1. September 9, 1996
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. Option for 519,500 shares at . fully vested
exercise price of $10.625 per share
. Option for 346,330 shares at . fully vested
exercise price of $13.281 per share
2. December 10, 1988
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. Option for 125,000 shares at . 1/3 vested (41,667 shares);
exercise price of $15.1875 per share 2/3 non-vested (83,333 shares)
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Exhibit B
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Estimated Retirement Benefit
Pursuant to Section 6(c) of Employment
Agreement (as of March 31, 2000)
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Target Benefit $ 932,740
DuPont Benefit (396,194)
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Benefit Based on 79 months of Employment $ 536,546
Completed Months of Employment 42
Reduction for Service Less than 79 Months 53.165 %
Pro Rated Target Benefit $ 285,254.68
Benefit Payable from
Company Plans Commencing at Age 62 (54,455.04)
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Annual Benefit Under Section 6(c)
Commencing at age 62 $ 230,799.64
============
Estimated Present Value of Annual Benefit
Under Section 6(c) [Interest @ 5.00%]* $ 2,790,866
============
________________
* Actual Present Value to reflect the average of Moody's AAA 10-Year Municipal
Bond Rates for the 13 weeks ending on the earlier of 1/31/2000 or the end of
the Transition Period.
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Exhibit C
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Estimated Payment (as of March 31, 2000)
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Estimated Benefit Per Section 6(b) of
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Employment Agreement
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Target Benefit $ 932,740
DuPont Benefit (396,194)
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Annual Benefit Payable by Company $ 536,546.00
Annual Benefit Payable from Company Plans
Commencing at Age 62 (54,455.04)
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Annual Benefit Under Section 6(b) at Age 62 $ 482,090.96
Reduction for Commencement at Age 58.9194 84.597 %
Reduced Annual Benefit Under Section 6(b)
Commencing at Age 58.9194 $ 407,834.49
============
Estimated Present Value of Reduced Annual
Benefit Under Section 6(b)
[Interest @ 5.00%]* $ 4,931,598
Estimated Present Value of Annual Benefit
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Under Section 6(c) per Exhibit B* (2,790,866)
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Estimated Payment $ 2,140,732
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_________________
* Actual Present Values to reflect the average of Moody's AAA 10-year
Municipal Bond Rates for the 13 weeks ending on the earlier of 1/31/2000 or
the end of the Transition Period.
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Exhibit D
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RELEASE
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(a) In consideration of the agreement by Xxxxx Xxxxxxxx Corporation (the
"Company") to make payment of the amounts contemplated by the Transition and
Retirement Agreement dated as of February 3, 2000, between Xxxxxxx X. Xxxxx
("Executive") and the Company (the "Transition Agreement"), Executive hereby
agrees to and does fully and completely release, discharge and waive any and all
claims, complaints, causes of action, actions, suits, debts, sums of money,
contracts, controversies, agreements, promises, or demands of whatever kind, in
law or in equity, which he ever had, now has or which he, his heirs, executors
or administrators may have against the Company and its subsidiaries,
predecessors, affiliates, successors and assigns, and each and all of their
officers and directors, in their capacities as such (collectively, the
"Releasees"), by reason of any event, matter, cause or thing which has occurred
to the date of execution of this Release. relating in any way to the Executive's
employment relationship with the Company or to his termination thereof, whether
for severance or based on statutory or common law claims for employment
discrimination, wrongful discharge, breach of contract or any other theory,
whether legal or equitable, or arising under any statute or regulation,
including the Age Discrimination in Employment Act of 1967, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974,
and the Family Medical Leave Act of 1993, each as amended, or any other federal,
state or local law, regulation, ordinance or common law.
(b) Nothing herein shall be deemed to release (i) any of the Executive's
rights under the Transition Agreement (including those rights under the
Employment Agreement which survive under, or are incorporated in, the Transition
Agreement (ii) any of the benefits that the Executive has accrued prior to the
date this Release is executed by the Executive and to which Executive is
entitled under the Company's various employee benefit plans, programs and
policies or (iii) any rights to indemnification or to directors and officers
liability insurance under the Certificates of Incorporation or By-laws or the
Company or any affiliate or pursuant to the provisions of any plan or agreement.
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(c) The Executive represents that the Company has advised him to consult
with an attorney of his choosing prior to signing this Release. The Executive
further represents that he understands and agrees that he has the right to and
has in fact reviewed this Release with an attorney of the Executive's choice.
The Executive further represents that he understands and agrees that the Company
is under no obligation to offer him this Release, that the Executive is under no
obligation to consent to this Release, and that he has entered into this Release
freely and voluntarily.
(d) The Executive shall have twenty-one (21) days to consider this Release
and once he has signed this Release, the Executive shall have seven (7)
additional days from the date of execution to revoke his consent to this
Release. Any such revocation shall be made by delivering written notification to
the Company and upon such revocation, the Executive shall immediately repay to
the Company any amounts theretofore paid to him pursuant to the Transition
Agreement and shall have no further right to receive any amounts or benefits
pursuant to the Transition Agreement. Unless previously revoked, this Release
shall become effective as of the eighth (8th) day after the date the Executive
signs this Release.
IN WITNESS WHEREOF, the Executive has executed this Release as of the
___ of ____________________, 2000.
______________________________
Executive
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