EMPLOYMENT CONTINUITY AGREEMENT
AGREEMENT by and between X'XXXXXXXX CORPORATION, a Virginia corporation
(the "Company"), and (the "Executive"), dated as of the
3rd day of March, 1997.
NOW, THEREFORE, in consideration of the mutual undertakings contained in
this Agreement, the parties agree as follows:
The Company's Board of Directors (the "Board") acknowledges that the
Executive's contributions to the past and future growth and success of the
Company have been and will continue to be substantial. As a publicly held
corporation, the Board recognizes that there exists a possibility of a change
in control of the Company. The Board also recognizes that the possibility of
such a change in control may contribute to uncertainty on the part of senior
management and may result in the departure or distraction of senior management
from operating responsibilities.
Outstanding management of the Company is always essential to advancing the
best interests of the Company and its stockholders. In the event of a threat
or occurrence of a bid to acquire or change control of the Company or to
effect a business combination, it is particularly important that the Company's
business be continued with a minimum of disruption. The Board believes that
the objective of securing and retaining outstanding management will be
achieved if the Company's key management employees are given assurances of
employment security so they will not be distracted by personal uncertainties
and risks created by such circumstances.
The Board believes that such assurances will secure the continued services
of the Company's key operational and management executives in the performance
of both their regular duties and such extra duties as may be required of them
during such periods of uncertainty, enable the Company to rely on such
executives to manage its affairs during any such period with less concern for
their personal risks, and enhance the Company's ability to attract new key
executives as needed.
The Compensation and Stock Option Committee (the "Committee") of the Board
has recommended, and the Board has approved, entering into employment
agreements with the Company's key management executives in order to achieve
the foregoing objectives; and the Executive is a key management executive of
the Company.
The Company and the Executive enter into this Agreement to induce the
Executive to remain an employee of the Company and to continue to devote
Executive's full energy to the Company's affairs.
1. Certain Definitions.
(a) The "Effective Date" shall be the first date during the "Change
of Control Period" (as defined in Section 1(b)) on which a Change
of Control occurs. Notwithstanding, anything in this Agreement to
the contrary, if the Executive's employment with the Company is
terminated or the Executive ceases to be an officer of the Company
prior to the date on which a Change of Control occurs, and it is
reasonably demonstrated that such termination of employment (1) was
at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control or (2) otherwise arose
45
in connection with or anticipation of the Change of Control, then
for all purposes of this Agreement the "Effective Date" shall mean
the date immediately prior to the date of such termination of
employment.
(b) The "Change of Control Period" is the period commencing on the
date of this Agreement and ending on the third anniversary of such
date; provided, however, that commencing on the date that is one
year after the date of this Agreement, and on each annual
anniversary of such date (such date and each annual anniversary is
hereinafter referred to as the "Renewal Date"), the Change of
Control Period shall be automatically extended so as to terminate
three years from such Renewal Date, unless at least 60 days prior
to the Renewal Date the Company shall give notice to the Executive
that the Change of Control Period shall not be so extended.
2. Change of Control. For the purpose of this Agreement, a "Change
of Control" shall mean:
(a) The acquisition, other than from the Company, 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 (the "Exchange Act")) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Company Voting
Securities"), provided, however, that any acquisition by (x)
the Company or any of its subsidiaries, or any employee benefit
plan (or related trust) sponsored or maintained by the Company
or any of its subsidiaries or (y) any corporation with respect
to which, following such acquisition, more than 60% of,
respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company
Common Stock and Company Voting Securities immediately prior to
such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the
Outstanding Company Common Stock and Company Voting Securities,
as the case may be, shall not constitute a Change of Control;
(b) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any individual
becoming a director subsequent to the date hereof whose
election or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection
46
with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act);
(c) Approval by the stockholders of the Company of a
reorganization, merger, share exchange or consolidation (a
"Business Combination"), with respect to which all or
substantially all of the individuals and entities who were the
respective beneficial owners of the Outstanding Company Common
Stock and Company Voting Securities immediately prior to such
Business Combination do not, following such Business
Combination, beneficially own, directly or indirectly, more
than 60% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Business Combination in substantially the
same proportion as their ownership immediately prior to such
Business Combination of the Outstanding Company Common Stock
and Company Voting Securities, as the case may be; or
(d) (i) a complete liquidation or dissolution of the Company or
(ii) sale or other disposition of all or substantially all of
the assets of the Company other than to a corporation with
respect to which, following such sale or disposition, more than
60% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors is then owned beneficially, directly or indirectly,
by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Company Voting Securities immediately
prior to such sale or disposition in substantially the same
proportion as their ownership of the Outstanding Company Common
Stock and Company Voting Securities, as the case may be,
immediately prior to such sale or disposition.
3. Employment Period. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the
employ of the Company, for the period commencing on the Effective Date and
ending on the first anniversary of such date (the "Employment Period").
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant
of those held, exercised and assigned at any time during the 90-
day period immediately preceding the Effective Date. The
Executive's services shall be performed during the Employment
Period at the location where the Executive was employed
immediately preceding the Effective Date or any other location
less than 35 miles from such location.
47
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of
the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period
it shall not be a violation of this Agreement for the Executive
to serve on corporate, civic or charitable boards or committees,
deliver lectures, fulfill speaking engagements or teach at
educational institutions, and manage personal investments, so
long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of
the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities
have been conducted by the Executive prior to the Effective Date,
the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with
the performance of the Executive's responsibilities to the
Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base
Salary"), which shall be paid at a monthly rate, at least equal
to twelve times the highest monthly base salary paid or payable
to the Executive by the Company and its affiliated companies for
the twelve-month period immediately preceding the month in which
the Effective Date occurs. During the Employment Period, the
Annual Base Salary shall be reviewed at least annually and shall
be increased at any time and from time to time as shall be
substantially consistent with increases in base salary awarded in
the ordinary course of business to other peer executives of the
Company and its affiliated companies. Any increase in Annual
Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase, and the term
Annual Base Salary as used in this Agreement shall refer to
Annual Base Salary as so increased. For purposes of this
Agreement, the term "affiliated companies" includes any company
controlled by, controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year beginning or
ending during the Employment Period, an annual bonus (the "Annual
Bonus") in cash of an amount not less than the total amount of the
bonuses paid to the Executive during the twelve-month period
immediately preceding the Effective Date (the "Pre-Change Annual
Bonus"). Each such Annual Bonus shall be paid no later than the
end of the third month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded.
48
(iii) Employee Benefit Plans. In addition to Annual Base
Salary and Annual Bonus, the Executive (and, to the extent
applicable, the Executive's dependents) shall be entitled to
participate during the Employment Period in all employee benefit
plans, practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated companies,
including, but not limited to, stock and cash incentive, profit
sharing, savings and retirement, deferred compensation, medical,
dental, disability, and life insurance (including split dollar
life insurance) plans, practices, policies and programs. However,
in no event shall such plans, practices, policies and programs
provide the Executive with benefits, in each case, that are less
favorable, in the aggregate, than (A) the most favorable of those
provided by the Company and its affiliated companies for the
Executive under such plans, practices, policies and programs as in
effect at any time during the 90-day period immediately preceding
the Effective Date or (B) if more favorable to the Executive,
those provided at any time after the Effective Date to other peer
executives of the Company and its affiliated companies.
(iv) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with
the most favorable policies, practices and procedures of the
Company and its affiliated companies in effect for the Executive
at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(v) Fringe Benefits. During the Employment Period, the
Executive shall be entitled to fringe benefits in accordance with
the most favorable plans, practices, programs and policies of the
Company and its affiliated companies in effect for the Executive
at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(vi) Office and Support Staff. During the Employment
Period, the Executive shall be entitled to an office or offices of
a size and with furnishings and other appointments, and to
exclusive personal secretarial and other assistance, at least
equal to the most favorable of the foregoing provided to the
Executive by the Company and its affiliated companies at any time
during the 90-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as provided generally at
any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(vii) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the
most favorable plans, policies, programs and practices of
the Company and its affiliated companies as in effect at any
time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to
other peer incentives of the Company and its affiliated
companies.
49
5. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during
the Employment Period. If the Company determines in good
faith that the Disability of the Executive has occurred
during the Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive
written notice in accordance with Section 12(b) of this
Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with
the Company shall terminate effective on the 30th day
following receipt of such notice by the Executive (the
"Disability Effective Date"), provided that the Executive
has not returned to full-time performance of the
Executive's duties within the 30 days after receipt of such
notice. For purposes of this Agreement, "Disability" means
the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or
physical illness which is determined to be total and
permanent by a physician selected by the Company or its
insurers and reasonably acceptable to the Executive or the
Executive's legal representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For
purposes of this Agreement, "Cause" means (i) an action
taken by the Executive involving willful and wanton
malfeasance involving a wholly wrongful and unlawful act,
or (ii) the Executive being convicted of a felony.
(c) Good Reason. The Executive's employment may be
terminated during the Employment Period by the Executive
for Good Reason. For purposes of this Agreement, "Good
Reason" means (i) the assignment to the Executive of any
duties inconsistent in any respect with the Executive's
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or any
other action by the Company which results in a diminution
in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice
thereof given by the Executive; (ii) any failure by the
Company to comply with any of the provisions of Section
4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive; (iii) the
Company's requiring the Executive to be based at any office
or location other than that described in Section 4(a)(i) of
this Agreement; (iv) any purported termination by the
Company of the Executive's employment otherwise than as
expressly permitted by this Agreement; or (v) any failure
by the Company to comply with and satisfy Section 11(c) of
this Agreement. For purposes of this Agreement, any good
faith determination of Good Reason made by the Executive
shall be conclusive. 50
(d) Notice of Termination. Any termination by the Company
for Cause or by the Executive for Good Reason shall be
communicated by Notice of Termination to the other party
hereto given in accordance with Section 12(b) of this
Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision of this Agreement upon which
the termination is based upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if
the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the
termination date (which date shall be not more than fifteen
days after the giving of such notice). In the case of a
termination of the Executive's employment for Cause, a
Notice of Termination shall include a copy of a resolution
duly adopted by the affirmative vote of not less than two-
thirds of the entire membership of the Board at a meeting
of the Board called and held for the purpose (after
reasonable notice to the Executive and reasonable
opportunity for the Executive, together with the
Executive's counsel, to be heard before the Board prior to
such vote), finding that in the good faith opinion of the
Board the Executive was guilty of conduct constituting
Cause. No purported termination of the Executive's
employment for Cause shall be effective without a Notice of
Termination. The failure by the Executive to set forth in
the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason shall not waive any
right of the Executive hereunder or preclude the Executive
from asserting such fact or circumstance in enforcing the
Executive's rights hereunder.
(e) Date of Termination. "Date of Termination" means the
date of receipt of the Notice of Termination or any later
date specified in such notice, as the case may be;
provided, however, that (i) if the Executive's employment
is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on
which the Company notifies the Executive of such
termination and (ii) if the Executive's employment is
terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive
or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination.
(a) Death. If the Executive's employment is
terminated by reason of the Executive's death during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this
Agreement, other than the following obligations:
(i) payment of the Executive's Annual Base Salary through
the Date of Termination to the extent not already paid;
51
(ii) payment of the product of (A) the greater of (1) the
largest Annual Bonus paid or payable (and annualized for any
fiscal year consisting of less than twelve full months or for
which the Executive has been employed for less than twelve full
months) during the Employment Period, if any, and (2) the Pre-
Change Annual Bonus and (B) a fraction, the numerator of which is
the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365; and
(iii) payment of any compensation previously deferred at the
election of the Executive (together with any accrued interest
thereon) and not yet paid by the Company (other than pursuant to
a qualified cash or deferred arrangement within the meaning of
Section 401(k) of the Internal Revenue Code of 1986, as amended
(the Code)) and any accrued vacation pay not yet paid by the
Company.
The amounts described in paragraphs (i), (ii) and (iii) above are
hereafter referred to as "Accrued Obligations". All Accrued
Obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days
of the Date of Termination. Notwithstanding anything in this
Agreement to the contrary, the Executive's estate and family shall
be entitled to receive benefits at least equal to the most
favorable benefits provided generally by the Company and any of
its affiliated companies to the estates and surviving families of
peer executives of the Company and such affiliated companies under
such plans, programs, practices and policies relating to death
benefits, if any, as in effect generally with respect to other
peer executives and their estates and families at any time during
the 90-day period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's dependents,
as in effect on the date of the Executive's death generally with
respect to other peer executives of the Company and its affiliated
companies and their dependents.
(b) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment
Period, this Agreement shall terminate without further
obligations to the Executive, other than for Accrued
Obligations. All Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of
Termination. Notwithstanding anything in this Agreement to the
contrary, the Executive shall be entitled after the Disability
Effective Date to receive disability and other benefits at
least equal to the most favorable of those generally provided
by the Company and its affiliated companies to disabled
executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if
any, as in effect generally with respect to other peer
executives and their families at any time during the 90-day
period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's dependents,
as in effect at any time thereafter generally with respect to
other peer executives of the Company and its affiliated
companies and their dependents.
52
(c) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment
Period, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay
to the Executive Annual Base Salary through the Date of
Termination plus the amount of any compensation previously
deferred by the Executive, in each case to the extent unpaid.
If the Executive terminates employment during the Employment
Period other than for Good Reason, this Agreement shall
terminate without further obligations to the Executive, other
than for Accrued Obligations. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum cash
payment within 30 days of the Date of Termination.
(d) Good Reason; Other Than for Cause or Disability. If, during
the Employment Period, the Company shall terminate the
Executive's employment other than for Cause or Disability, or
if the Executive shall terminate employment under this
Agreement for Good Reason:
(i) The Company shall pay to the Executive a lump sum cash
payment within 30 days after the Date of Termination equal to the
sum of the following amounts:
A. the amounts described in Sections 6(a)(i) and
6(a)(iii);
B. the largest Annual Base Salary paid or payable to
the Executive during the Employment Period (and
annualized for any fiscal year consisting of less
than twelve full months or for which the Executive
has been employed for less than twelve full months);
and
C. the greater of (1) the largest Annual Bonus paid or
payable (and annualized for any fiscal year
consisting of less than twelve full months or for
which the Executive has been employed for less than
twelve full months) during the Employment Period,
if any, and (2) the Pre-Change Annual Bonus.
(ii) The Company shall continue the automobile allowance that
is in effect for the Executive as of the Date of Termination for
the twelve-month period immediately following the Date of
Termination.
7. Completion of the Employment Period. If the Executive continues
in the employment of the Company from the Effective Date to the last day of
the Employment Period, the Company shall pay to the Executive a lump sum cash
payment equal to the largest Annual Base Salary paid or payable to the
Executive during the Employment Period (and annualized for any fiscal year
consisting of less than twelve full months or for which the Executive has been
employed for less than twelve full months) within 30 days after the last day
of the Employment Period.
8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
53
benefit, bonus, incentive or other plans, programs, policies or practices,
provided by the Company or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise affect
such rights as the Executive may have under any other agreements with the
Company or any of its affiliated companies (such as the Executive's Salary
Continuation Agreement with the Company, if any). Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any
plan, policy, practice or program of the Company or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice or program except as explicitly
modified by this Agreement.
9. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement. The
Company agrees to pay promptly as incurred, to the full extent permitted by
law, all legal fees and expenses which the Executive may reasonably incur as a
result of any contest (regardless of the outcome thereof) by the Company, the
Executive (unless a court of competent jurisdiction determines that the
Executive acted in bad faith in initiating the contest), or others concerning
the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of
any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest at the applicable Federal rate provided
for in Section 7872(f)(2) of the Code.
10. Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its
affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the Company or
any of its affiliated companies and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the
Executive's employment with the Company, the Executive shall not, without the
prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions
of this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
11. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by
the Executive other 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 legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
54
all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement
in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the
Company and any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of
law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia,
without reference to principles of conflict of laws. The
captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party
or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
If to the Company:
or to such other address as either party shall have furnished to
the other in writing in accordance with the provisions of this
Section 12(b). Notice and communications shall be effective when
actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive's failure to insist upon strict compliance with
any provision hereof or the failure to assert any right the
Executive may have hereunder, including, without limitation,
the right to terminate employment for Good Reason pursuant to
Section 5(c)(i)-(v), shall not be deemed to be a waiver of such
provision or right or any other provision or right thereof.
(f) This Agreement contains the entire understanding of the
Company and the Executive with respect to the subject matter
55
hereof. Until the Effective Date, and subject to the terms of
any other employment agreement between the Executive and the
Company, the Executive shall continue to be an "employee at
will".
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date indicated above.
X'XXXXXXXX CORPORATION
By:___________________________
EXECUTIVE
By:____________________________
56
