Exhibit 10.13
CHIEF EXECUTIVE OFFICER
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is entered into this 1st day of August, 2002 by and
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between ▇▇▇▇▇▇▇ DENVER, INC., a Delaware corporation (the "Company"), and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Executive").
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WHEREAS, the Company's Board of Directors (the "Board") has
determined that it is in the best interests of the Company and its
stockholders to ensure that the Company and its affiliates will have the
continued dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a termination of the Executive's employment in
certain circumstances, including following a Change in Control as defined
herein. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and
risks created by a pending or threatened termination of the Executive's
employment in such circumstances and to provide the Executive with
compensation and benefits arrangements upon such a termination which ensure
that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other corporations who may
seek to employ the Executive.
NOW, THEREFORE, in order to accomplish these objectives, the Board
has caused the Company to enter into this Agreement with the Executive, and
it is hereby agreed as follows:
1. Definitions. For purposes of this Agreement, the following terms
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will have the following meanings unless otherwise expressly provided in this
Agreement:
(a) Beneficiary. "Beneficiary" means any individual, trust or
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other entity named by the Executive to receive the
severance payments and benefits payable hereunder, if any,
in the event of the death of the Executive. Executive may
designate a Beneficiary to receive such payments and
benefits by completing a form provided by the Company and
delivering it to the Company's Vice President General
Counsel & Secretary. Executive may change his or her
designated Beneficiary at any time (without the consent of
any prior Beneficiary) by completing and delivering to the
Company a new beneficiary designation form. If a
Beneficiary has not been designated by the Executive, or
if no designated Beneficiary survives the Executive, then
the payment and benefits provided under this Agreement, if
any, will be paid to the Executive's estate, which shall
be deemed to be Executive's Beneficiary.
(b) Board. "Board" means the Board of Directors of the
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Company.
(c) Cause. "Cause" means:
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(i) the Executive's willful and continued failure to
substantially perform the Executive's duties with
the Company or its affiliates (other than any such
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failure resulting from the Executive's incapacity
due to physical or mental illness), after a
written demand for substantial performance is
delivered to the Executive by the Company which
specifically identifies the manner in which the
Company believes that the Executive has not
substantially performed his or her duties;
(ii) the final conviction of the Executive of, or an
entering of a guilty plea or a plea of no contest
by the Executive, to a felony; or
(iii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially
and demonstrably injurious to the Company.
For purposes of this definition, no act or
failure to act on the part of the Executive shall
be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith
or without a reasonable belief that the action or
omission was in the best interests of the Company
or its affiliates. Any act, or failure to act,
based on authority given pursuant to a resolution
duly adopted by the Board, the instructions of a
more senior officer of the Company or the advice
of counsel to the Company or its affiliates will
be conclusively presumed to be done, or omitted
to be done, by the Executive in good faith and in
the best interests of the Company and its
affiliates.
(d) Change in Control. A "Change in Control" means the
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occurrence of any one of the following events:
(i) any "person" (as defined in Sections 13(d) and
14(d) of U.S. Securities Exchange Act of 1934, as
amended (the "Exchange Act"), other than the
Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the
Company or any subsidiary of the Company, or any
corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the
same proportions as their ownership of stock of
the Company, acquires "beneficial ownership" (as
defined in Rule 13d-3 under the Exchange Act) of
securities representing 20% of the combined
voting power of the Company; or
(ii) during any period of not more than two
consecutive years, individuals who, at the
beginning of such period, constitute the Board
and any new directors (other than any director
designated by a person who has entered into an
agreement with the Company to effect a
transaction described in subsections 1(d)(i),
1(d)(iii), or 1(d)(iv) of this Agreement) whose
election by the Board or nomination for election
by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the
directors then still in office who either were
directors at the beginning of the period or
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whose election or nomination for election was
previously so approved, cease for any reason to
constitute at least a majority of the Board; or
(iii) the stockholders of the Company approve and the
Company consummates a merger other than (A) a
merger that would result in the voting securities
of the Company outstanding immediately prior
thereto continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity), in
combination with the ownership of any trustee or
other fiduciary holding securities under an
employee benefit plan of the Company and any
Subsidiary, at least 50% of the combined voting
power of all classes of stock of the Company or
such surviving entity outstanding immediately
after such merger or (B) a merger effected to
implement a recapitalization of the Company (or
similar transaction) in which no person acquires
more than 50% of the combined voting power of the
Company's then outstanding securities; or
(iv) the stockholders of the Company approve and the
Company consummates a plan of complete
liquidation or dissolution of the Company, or a
sale of all or substantially all of the assets of
the Company.
(e) Date of Termination means the date specified in a Notice
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of Termination pursuant to paragraph 3 hereof, or the Executive's
last date as an active employee of the Company and its affiliates
before a termination of employment due to death, Disability, or
other reason, as the case may be.
(f) Disability. "Disability" means the Executive's total and
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permanent disability as defined under the terms of the Company's
long-term disability plan in effect on the Date of Termination.
(g) Effective Period. The "Effective Period" means the
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36-month period following any Change in Control.
(h) Good Reason. "Good Reason" means, unless the Executive has
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consented in writing thereto, the occurrence of any of the
following:
(i) The assignment to the Executive of any duties
inconsistent with the Executive's position,
including any change in status, title, authority,
duties or responsibilities or any other action
which results in a diminution in such status,
title, 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 or
the Executive's employer promptly after receipt
of notice thereof given by the Executive;
(ii) A reduction by the Company or the Executive's
employer in the Executive's base salary;
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(iii) The relocation of the Executive's office to a
location more than 40 miles outside Quincy,
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Illinois;
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(iv) Following a Change in Control, unless a plan
providing a substantially similar compensation or
benefit is substituted, (A) the failure by the
Company or any of its affiliates to continue in
effect any material fringe benefit or
compensation plan, retirement plan, life
insurance plan, health and accident plan or
disability plan in which the Executive is
participating prior to the Change in Control, or
(B) the taking of any action by the Company or
any of its affiliates which would adversely
affect the Executive's participation in or
materially reduce his benefits under any of such
plans or deprive him of any material fringe
benefit; or
(v) Following a Change in Control, the failure of the
Company or the affiliate of the Company by which
the Executive is employed, or any affiliate which
directly or indirectly owns or controls any
affiliate by which the Executive is employed, to
obtain the assumption in writing of the Company's
obligation to perform this Agreement by any
successor to all or substantially all of the
assets of the Company or such affiliate within 15
days after a reorganization, merger,
consolidation, sale or other disposition of
assets of the Company or such affiliate.
(vi) Any purported termination of the Executive's
employment by the Company which is not effected
pursuant to a Notice of Termination satisfying
the requirements of paragraph 3 hereof; and for
purposes of this Agreement, no such purported
termination shall be effective.
For purposes of this Agreement, any determination of "Good
Reason" made by the Executive in good faith based upon his
reasonable belief and understanding shall be conclusive.
2. Term. The term ("Term") of this Agreement shall commence on the
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date first above written (the "Commencement Date") and, unless terminated
earlier as provided hereunder, shall continue through the third anniversary
of the Commencement Date (the "Termination Date"); provided, however, that
commencing on the day following the Termination Date (the "Extension Date"),
and on the anniversary of the Extension Date each year thereafter, the term
of this Agreement shall automatically be extended for one additional year,
unless at least 90 days prior to such Extension Date, the Company shall have
given notice that it does not wish to extend this Agreement. Upon the
occurrence of a Change in Control during the term of this Agreement,
including any extensions thereof, this Agreement shall automatically be
extended until the end of the Effective Period and may not be terminated by
the Company during such time.
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3. Notice of Termination.
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(a) Any termination of the Executive's employment by the
Company, or by any affiliate of the Company by which the
Executive is employed, 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
paragraph 10 of this Agreement. For purposes of this
Agreement, a "Notice of Termination" for termination of
employment for Cause or for Good Reason means a written
notice which (i) is given at least thirty (30) days prior
to the Date of Termination; (ii) indicates the specific
termination provision in this Agreement relied upon, (iii)
to the extent applicable, 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, (iv) specifies the employment
termination date; and (v) allows the recipient of the
Notice of Termination at least thirty (30) days to cure
the act or omission relied upon in the Notice of
Termination. The failure to set forth in the Notice of
Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause will not waive any right
of the party giving the Notice of Termination hereunder or
preclude such party from asserting such fact or
circumstance in enforcing its rights hereunder.
(b) A Termination of Employment of the Executive will not be
deemed to be for Cause unless and until there has been
delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a
meeting of the Board called and held for such purpose
(after reasonable notice is provided to the Executive and
the Executive is given an opportunity, together with
counsel, to be heard before the Board), finding that, in
the good faith opinion of the Board, the Executive has
engaged in the conduct described in paragraph 1(c) hereof,
and specifying the particulars of such conduct.
(c) A Termination of Employment of the Executive will not be
deemed to be for Good Reason unless the Executive gives
the Notice of Termination provided for herein within
twelve (12) months after the Executive has actual
knowledge of the act or omission of the Company
constituting such Good Reason.
4. Obligations of the Company Upon Termination of Executive's
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Employment Following a Change in Control.
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(a) If, during the Effective Period, the Company terminates
the Executive's employment other than for Cause or the
Executive terminates employment with the Company for Good
Reason, the Company will pay the following to the
Executive:
(i) Cash in the amount of the Executive's annual base
salary through the Date of Termination to the
extent not theretofore paid;
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(ii) Cash in the amount of the highest annual bonus
received by the Executive in the three years
immediately preceding the Notice of Termination;
(iii) Cash in an amount equal to the product of three
times the Executive's annual base salary at the
greater of (A) the rate in effect at the time
Notice of Termination is given or (B) the rate in
effect immediately preceding the Change in
Control, payable in a lump sum;
(iv) A lump sum cash amount equal to the product of
three times the highest annual bonus received by
the Executive in the three years immediately
preceding the Notice of Termination;
(v) A lump sum cash amount equal to compensation
previously deferred by the Executive, and all
interest and earnings accrued thereon to the Date
of Termination, under any and all nonqualified
deferred compensation plans sponsored or
maintained by the Company or by any affiliate
controlled by the Company, including without
limitation the Non-qualified Retirement Plans, in
effect and in which the Executive was a
participant, on the Date of Termination;
(vi) The continuation of the provision of health
insurance, dental insurance and life insurance
benefits for a period of three years following
the Date of Termination to the Executive and the
Executive's family at least equal to those which
would have been provided to them in accordance
with the plans, programs, practices and policies
of the Company as in effect and applicable
generally to other peer executives and their
families during the 90-day period immediately
preceding the Effective Period or on the Date of
Termination, at the election of the Executive;
provided, however, that if the Executive becomes
re-employed with another employer and is eligible
to receive medical or other welfare benefits
under another employer provided plan, the medical
and other welfare benefits described herein will
be secondary to those provided under such other
plan during such applicable period of
eligibility; and
(vii) The acceleration of vesting and the continued
accrual of benefits under any and all defined
benefit retirement plans sponsored or maintained
by the Company or by any affiliate controlled by
the Company, including without limitation the
Non-qualified and Qualified Plans, in effect on
and in which the Executive was a Participant on
the Date of Termination, in each case for a
period of three years, but in no event beyond the
date that the Executive or Executive's spouse
begins to receive benefits under such plan.
(b) "Compensation" Under Retirement Plans. Any and all amounts
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paid under this Agreement in the amount of or otherwise in
respect of the Executive's annual base salary and bonuses,
whether or not deferred under a deferred compensation
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plan or program, are intended to be and will be
"Compensation" for purposes of determining Compensation
under any and all retirement plans sponsored or maintained
by the Company or by any affiliate controlled by the
Company.
(c) Effect of Death or Disability. If the Executive's
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employment is terminated by reason of the Executive's
death or Disability during the Term of this Agreement,
this Agreement shall terminate automatically on the date
of death or, in the event of Disability, on the Date of
Termination. In the event of the Executive's death
following the Executive's Date of Termination, but prior
to the payment of the severance payments and benefits
provided under paragraph 4 hereof, if any, such payments
and benefits will be paid to the Executive's Beneficiary.
5. Mitigation of Damages. The Executive will not be required to
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mitigate damages or the amount of any payment provided for under this
Agreement by seeking other employment or otherwise. Except as otherwise
specifically provided in this Agreement, the amount of any payment provided
for under this Agreement will not be reduced by any compensation earned by
the Executive as the result of self-employment or employment by another
employer or otherwise.
6. Stock Options; Stock Appreciation Rights; Long-Term Cash Bonus;
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Restricted Stock; Performance Shares. The benefits provided under paragraph
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4 above are intended to be in addition to the value of any options to
acquire common stock of the Company, Stock Appreciation Rights, shares of
Restricted Stock, Restricted Stock Units, Performance Shares and Long-Term
Cash Bonuses awarded under the ▇▇▇▇▇▇▇ Denver, Inc. Long-Term Incentive Plan
(the "Stock Plan") and any other incentive or similar plan heretofore or
hereafter adopted by the Company. The exercisability or vesting of such
awards upon a Change in Control shall be governed by the terms of the Stock
Plan and any award agreements entered into thereunder.
7. Tax Effect.
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(a) If Independent Tax Counsel determines that any payment or
distribution by the Company or its affiliates to or for
the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise) (a "Payment") constitutes a
"parachute payment" as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") (or
any successor provision thereto)("Parachute Payment")
which would be subject to the excise tax imposed by
Section 4999 of the Code, or any interest or penalties are
incurred by the Executive with respect to such excise tax
(such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive will be entitled to
receive an additional payment (a "Gross-Up Payment") in an
amount equal to the sum of the Excise Tax, any and all
federal, state and local income taxes and Medicare tax on
the Excise Tax, and the excise tax imposed by Section 4999
of the Code on the Excise Tax, together with any interest
or penalties incurred by the Executive with respect to
such income, Medicare and excise taxes.
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(b) Subject to the provisions of paragraph 7(d) below, all
determinations required to be made under this paragraph 7,
including whether and when a Gross-Up Payment is required,
the amount of such Gross-Up Payment and the assumptions to
be utilized in arriving at such determinations, will be
made by Independent Tax Counsel which shall provide
detailed supporting calculations both to the Company and
the Executive within 15 business days of the receipt of
notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. For
purposes of this paragraph, "Independent Tax Counsel" will
mean a lawyer, a certified public accountant with a
nationally recognized accounting firm, or a compensation
consultant with a nationally recognized actuarial and
benefits consulting firm with expertise in the area of
executive compensation tax law, who will be selected by
the Company and will be reasonably acceptable to the
Executive, and whose fees and disbursements will be paid
by the Company.
(c) Any Gross-Up Payment will be paid by the Company to the
Executive within five days of the Company's receipt of the
Independent Tax Counsel's determination. If Independent
Tax Counsel determines that no Excise Tax is payable by
the Executive, it will furnish the Executive with a
written opinion that the Executive has substantial
authority not to report any Excise Tax on the Executive's
Federal income tax return. If the Executive is
subsequently required to make a payment of any Excise Tax,
then the Independent Tax Counsel will determine the amount
of such additional payment ("Gross-Up Underpayment"), and
any such Gross-Up Underpayment will be promptly paid by
the Company to or for the benefit of the Executive. The
fees and disbursements of the Independent Tax Counsel will
be paid by the Company.
(d) The Executive will notify the Company in writing within 15
days of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of a
Gross-Up Payment. If the Company notifies the Executive in
writing that it desires to contest such claim and that it
will bear the costs and provide the indemnification as
required by this paragraph, the Executive will:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably
request in writing from time to time, including,
without limitation, accepting legal
representation with respect to such claim by an
attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
to effectively contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided,
however, that the Company will bear and pay
directly all
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costs and expenses (including additional interest
and penalties) incurred in connection with such
contest and will indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise
Tax or income tax, including interest and
penalties with respect thereto, imposed as a
result of such representation and payment of
costs and expenses. The Company will control all
proceedings taken in connection with such
contest; provided, however, that if the Company
directs the Executive to pay such claim and ▇▇▇
for a refund, the Company will advance the amount
of such payment to the Executive on an
interest-free basis, and will indemnify and hold
the Executive harmless on an after-tax basis,
from any Excise Tax or income tax, including
interest or penalties with respect thereto,
imposed with respect to such advance or with
respect to any imputed income with respect to
such advance.
(e) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to paragraph 7(d)(iv),
the Executive becomes entitled to receive any refund with
respect to such claim, the Executive will, within 10 days
of receipt thereof, pay to the Company the amount of such
refund, together with any interest paid or credited
thereon after taxes applicable thereto. If, after the
receipt by the Executive of an amount advanced by the
Company pursuant to paragraph 7(d)(iv), a determination is
made that the Executive shall not be entitled to any
refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days
after such determination, then such advance will be
forgiven and will not be required to be repaid and the
amount of such advance will offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
8. Confidential Information; Non-solicitation. For the Term of this
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Agreement, and for the period of time during which the Executive receives
benefits pursuant to paragraph 4(a)(vi) hereof, the Executive covenants and
agrees as follows:
(a) to hold in a fiduciary capacity for the benefit of the
Company and its affiliates all secret, proprietary or
confidential material, knowledge, data or any other
information relating to the Company or any of its
affiliated companies and their respective businesses
("Confidential Information"), which has been obtained by
the Executive during the Executive's employment by the
Company or any of its affiliated companies and that has
not been, is not now and hereafter does not become public
knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this
Agreement), and will not, without the prior written
consent of the Company or as may otherwise be required by
law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the
Company and those designated by it; the Executive further
agrees to return to the Company any and all records and
documents (and all copies thereof) and all other property
belonging to the Company or relating to the Company, its
affiliates or their businesses, upon termination of
Executive's employment with the Company and its
affiliates; and,
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(b) not to solicit or entice any other employee of the Company
or its affiliates to leave the Company or its affiliates
to go to work for any other business or organization which
is in direct or indirect competition with the Company or
any of its affiliates, nor request or advise a customer or
client of the Company or its affiliates to curtail or
cancel such customer's business relationship with the
Company or its affiliates.
9. Rights and Remedies Upon Breach.
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(a) The Executive hereby acknowledges and agrees that the
provisions contained in paragraph 8 of this Agreement (the
"Restrictive Covenants"), are reasonable and valid in
duration and in all other respects. If any court of
competent jurisdiction determines that any of the
Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants
will not thereby be affected and will be given full effect
without regard to the invalid portions.
(b) If the Executive breaches, or threatens to commit a breach
of, any of the Restrictive Covenants, the Company will
have the following rights and remedies, each of which
rights and remedies will be independent of the others and
severally enforceable, and each of which is in addition
to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity:
(i) Specific Performance. The right and remedy to
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have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction,
it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause
irreparable injury to the Company and that money
damages would not provide an adequate remedy to
the Company.
(ii) Accounting. The right and remedy to require the
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Executive to account for and pay over to the
Company all compensation, profits, monies,
accruals, increments or other benefits derived or
received by the Executive as the result of any
action constituting a breach of the Restrictive
Covenants.
(iii) Cessation of Severance Benefits. The right and
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remedy to cease any further severance, benefit or
other compensation payments under this Agreement
to the Executive or the Executive's Beneficiary
from and after the commencement of such breach by
the Executive.
10. Arbitration. The Company and Executive agree that any claim,
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dispute or controversy arising under or in connection with this Agreement
(including, without limitation, any such claim, dispute or controversy
arising under any federal, state or local statute, regulation or ordinance
or any of the Company's employee benefit plans, policies or programs) shall
be resolved solely and exclusively by binding arbitration. The arbitration
shall be held in the city of St. Louis (or at such other location as shall
be mutually agreed by the parties). The arbitration
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shall be conducted in accordance with the Expedited Employment Arbitration
Rules (the "Rules") of the American Arbitration Association (the "AAA") in
effect at the time of the arbitration, except that the arbitrator shall be
selected by alternatively striking from a list of five arbitrators supplied
by the AAA. All fees and expenses of the arbitration, including a transcript
if either requests, shall be borne equally by the parties. If Executive
prevails as to any material issue presented to the arbitrator, the entire
cost of such proceedings (including, without limitation, Executive's
reasonable attorneys fees) shall be borne by the Company. If Executive does
not prevail as to any material issue, each party will pay for the fees and
expenses of its own attorneys, experts, witnesses, and preparation and
presentation of proofs and post-hearing briefs (unless the party prevails on
a claim for which attorney's fees are recoverable under the Rules). Any
action to enforce or vacate the arbitrator's award shall be governed by the
Federal Arbitration Act, if applicable, and otherwise by applicable state
law. If either the Company or Executive pursues any claim, dispute or
controversy against the other in a proceeding other than the arbitration
provided for herein, the responding party shall be entitled to dismissal or
injunctive relief regarding such action and recovery of all costs, losses
and attorney's fees related to such action. Notwithstanding the provisions
of this paragraph, either party may seek injunctive relief in a court of
competent jurisdiction, whether or not the case is then pending before the
panel of arbitrators. Following the court's determination of the injunction
issue, the case shall continue in arbitration as provided herein.
11. Notices. Any notice provided for in this Agreement will be given in
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writing and will be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice will be deemed given when so delivered
personally, telegraphed, telexed or sent by facsimile transmission, or, if
mailed, on the date of actual receipt thereof. Notices will be properly
addressed to the parties at their respective addresses set forth below or to
such other address as either party may later specify by notice to the other
in accordance with the provisions of this paragraph:
If to the Company:
▇▇▇▇▇▇▇ Denver, Inc.
1800 ▇▇▇▇▇▇▇ Expressway
Quincy, IL ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
Attention: Corporate Secretary/General Counsel
If to the Executive:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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12. Entire Agreement. This Agreement contains the entire agreement
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between the parties with respect to the subject matter hereof and supersedes
all prior agreements, written or oral, with respect thereto, including,
without limitation, the Letter Agreement entered into between the Company
and the Executive dated effective February 24, 1994, and any and all prior
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employment or severance agreements and related amendments entered into
between the Company and the Executive. Furthermore, the severance payments
and benefits provided for under this Agreement are separate and apart from
and, to the extent they are actually paid, will be in lieu of any payment
under any policy of the Company or any of its affiliates regarding severance
payments generally.
13. Waivers and Amendments. This Agreement may be amended, superseded,
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canceled, renewed or extended, and the terms and conditions hereof may be
waived, only by a written instrument signed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the part of
any party in exercising any right, power or privilege hereunder will operate
as a waiver thereof, nor will any waiver on the part of any party of any
such right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder, preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder.
14. Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the state of Delaware (without giving effect to
the choice of law provisions thereof), where the employment of the Executive
will be deemed, in part, to be performed, and enforcement of this Agreement
or any action taken or held with respect to this Agreement will be taken in
the courts of appropriate jurisdiction in Delaware.
15. Assignment. This Agreement, and any rights and obligations
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hereunder, may not be assigned by the Executive and may be assigned by the
Company only to any successor in interest, whether by merger, consolidation,
acquisition or the like, or to purchasers of substantially all of the assets
of the Company.
16. Binding Agreement. This Agreement will inure to the benefit of and
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be binding upon the Company and its respective successors and assigns and
the Executive and his legal representatives.
17. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which when so executed and delivered will be deemed an
original, but all of which together will constitute one and the same
instrument.
18. Headings. The headings in this Agreement are for reference purposes
--------
only and will not in any way affect the meaning or interpretation of this
Agreement.
19. Authorization. The Company represents and warrants that the Board
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of Directors of the Company has authorized the execution of this Agreement.
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20. Validity. The invalidity or unenforceability of any provisions of
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this Agreement will not affect the validity or enforceability of any other
provisions of this Agreement, which will remain in full force and effect.
21. Tax Withholding. The Company will have the right to deduct from all
---------------
benefits and/or payments made under this Agreement to the Executive any and
all taxes required by law to be paid or withheld with respect to such
benefits or payments.
22. No Contract of Employment. Nothing contained in this Agreement will
-------------------------
be construed as a contract of employment between the Company or any of its
affiliates and the Executive, as a right of the Executive to be continued in
the employment of the Company or any of its affiliates, or as a limitation
of the right of the Company or any of its affiliates to discharge the
Executive with or without cause.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
The Company
▇▇▇▇▇▇▇ DENVER, INC. THE EXECUTIVE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President, General Counsel
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& Secretary
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