Exhibit 10(e)
CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT dated November 17,
1995, between ▇▇▇▇▇▇▇ CORPORATION, a Delaware corporation (the
"Company"), and _______________________________________ (the
"Executive").
WHEREAS, the Company's Board of Directors has
determined that, in light of the importance of the Executive's
continued services to the stability and continuity of management
of the Company and its subsidiaries, it is appropriate and in
the best interests of the Company and of its shareholders to
reinforce and encourage the Executive's continued disinterested
attention and undistracted dedication to his duties in the
potentially disturbing circumstances of a possible change in
control of the Company by providing some degree of personal
financial security;
WHEREAS, in order to induce the Executive to remain in
the employ of the Company or a subsidiary of the Company (a
"Subsidiary"), the Company's Board of Directors has determined
that it is desirable to pay the Executive the severance compen-
sation set forth below if the Executive's employment with the
Company or a Subsidiary terminates in one of the circumstances
described below following a Change in Control (as defined
below); and
WHEREAS, the Company has previously entered into
Severance Compensation and Change in Control Agreements with
certain executive officers of the Company and its Subsidiaries,
including the Executive, and this Agreement constitutes an
amendment and restatement of all such prior Agreements, each of
which shall be superseded in its entirety hereby;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants contained in this Agreement, the Company
and the Executive agree as follows:
1. Term of Agreement. (a) The term of this Agreement
shall commence on the date hereof and shall terminate, except to
the extent that any obligation of the Company hereunder remains
unpaid as of such time, on the earlier to occur of the date on
which the Executive reaches age 65 and November 17, 1998, subject
to extension as provided in Section 1(b) below; provided,
however, that this Agreement shall continue in effect until the
earlier to occur of the date on which the Executive reaches age
65 and the date three years beyond the initial or any extended
date of termination of this Agreement if a Change in Control
shall have occurred prior to such date of termination of this
Agreement (and shall continue for such additional period as any
obligation of the Company under this Agreement shall remain
unpaid).
(b) Commencing on November 17, 1996, and on each
subsequent anniversary of such date (such date and each
subsequent anniversary thereof is hereinafter referred to as a
"Renewal Date"), the term of this Agreement shall be automati-
cally extended so as to terminate three years thereafter, unless
at least 60 days prior to the next Renewal Date the Company shall
give written notice to the Executive that the term of this
Agreement shall not be so extended.
2. Change in Control. No compensation shall be payable
under this Agreement unless and until (a) there shall have been a
Change in Control while the Executive is still an employee of the
Company or a Subsidiary, and (b) the Executive's employment by the
Company or a Subsidiary thereafter shall have been terminated in
accordance with Section 3 of this Agreement. For purposes of this
Agreement, a "Change in Control" shall be deemed to have occurred
if (i) there shall be consummated (A) any consolidation or merger
of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders
of the Company's Common Stock immediately prior to the merger have
substantially the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or (B) any
sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all the
assets of the Company, or (ii) the shareholders of the Company
shall approve any plan or proposal for the liquidation or
dissolution of the Company, or (iii) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), other than the Company or
a Subsidiary or any employee benefit plan sponsored by the Company
or a Subsidiary, shall become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of securities of the
Company representing 25% or more of the combined voting power of
the Company's then outstanding securities ordinarily (and apart
from rights accruing in special circumstances) having the right to
vote in the election of directors, as a result of a tender or
exchange offer, open market purchases, privately negotiated
purchases or otherwise, or (iv) at any time during a period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company shall cease for
any reason to constitute at least a majority thereof, unless the
election or the nomination for election by the Company's
shareholders of each new director during such two-year period was
approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such two-
year period, or (v) there shall be consummated any sale or other
disposition of a majority of the voting stock or of all or
substantially all of the assets of one or more of the Company's
Significant Subsidiaries in one or more transactions, or any
distribution to or exchange with the Company's shareholders of a
majority of the voting stock of one or more of the Company's
Significant Subsidiaries. For the purposes of the preceding clause
(v), a "Significant Subsidiary" shall mean any direct or indirect
Subsidiary of the Company whose consolidated sales, assets,
operating income or number of employees represent, as of the date
of determination, or have during any of the previous three fiscal
years of the Company represented, as of such date, 20% or more of
the Company's consolidated sales, assets or operating income or
total number of employees.
3. Termination Following Change in Control. (a) If a
Change in Control shall have occurred while the Executive is still
an employee of the Company or a Subsidiary, the Executive shall be
entitled to the compensation provided in Section 4 of this Agreement
upon the subsequent termination of the Executive's employment with
the Company or Subsidiary within three years of the date upon which
the Change in Control shall have occurred, unless such termination
is as a result of (i) the Executive's death, (ii) the Executive's
Disability (as defined in Section 3(b) below), (iii) the Executive's
Retirement (as defined in Section 3(c) below), (iv) the Executive's
termination for Cause (as defined in Section 3(d) below), or (v) the
Executive's decision to terminate employment other than for Good
Reason (as defined in Section 3(e) below). Notwithstanding anything
to the contrary in this Agreement, if a Change in Control occurs and
if the Executive's employment with the Company was terminated prior
to the date on which the Change in Control occurs, and if it is
reasonably demonstrated by the Executive that such termination of
employment (i) was at the request of a third party who had taken
steps reasonably calculated to effect the Change in Control, or (ii)
otherwise arose in connection with or anticipation of the Change in
Control, then for all purposes of this Agreement, the termination of
the Executive's employment shall be deemed to have occurred
immediately following the Change in Control.
(b) Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall
qualify for benefits under the Company's long-term disability plan
and shall have been absent from his duties with the Company or a
Subsidiary on a full-time basis for a continuous period of six
months commencing with the date of Change in Control or the first
day of such absence (whichever is later) the Company or such
Subsidiary may terminate the Executive's employment for "Disability"
without the Executive's being entitled to the compensation provided
in Section 4.
(c) Retirement. The term "Retirement" as used in this
Agreement shall mean termination by the Company or a Subsidiary or
the Executive of the Executive's employment based on the Executive's
having reached age 65. Termination based on "Retirement" shall not
include, for purposes of this Agreement, the Executive's taking of
early retirement by reason of a termination by the Executive of his
employment for Good Reason.
(d) Cause. The Company or a Subsidiary may terminate
the Executive's employment for Cause without the Executive's being
entitled to the compensation provided in Section 4. For purposes of
this Agreement, the Company or Subsidiary shall have "Cause" to
terminate the Executive's employment only on the basis of (i) the
Executive's wilful and continued failure substantially to perform
his duties with the Company or Subsidiary (other than any such
failure resulting from his incapacity due to physical or mental
illness or any such failure resulting from the Executive's
termination for Good Reason), after a written demand for substantial
performance is delivered to the Executive by the Chief Executive
Officer (or if the Executive is Chief Executive officer, by the
Board of Directors) which specifically identifies the manner in
which the Chief Executive Officer (or the Board of Directors if the
Executive is Chief Executive Officer) believes that the Executive
has not substantially performed his duties, or (ii) the Executive's
wilful engagement in gross conduct materially and demonstrably
injurious to the Company or a Subsidiary. For purposes of this
subsection, no act or failure to act on the Executive's part shall
be considered "wilful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company or a
Subsidiary. The Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to the Executive a written statement of the Chief
Executive Officer (or if the Executive is Chief Executive Officer,
a copy of a resolution duly adopted by the affirmative vote of
not less than two-thirds of the entire membership of the Board of
Directors at a duly convened meeting of the Board of Directors),
finding that in the good faith opinion of the Chief Executive
Officer (or the Board of Directors if the Executive is Chief
Executive Officer) the Executive was guilty of conduct set forth in
clause (i) or (ii) of the second sentence of this Section 3(d) and
specifying the particulars thereof in detail.
(e) Good Reason. The Executive may terminate the
Executive's employment for Good Reason within three years after a
Change in Control and during the term of this Agreement and become
entitled to the compensation provided in Section 4. For purposes of
this Agreement "Good Reason" shall mean any of the following events,
unless it occurs with the Executive's express prior written consent:
(i) the assignment to the Executive by the Company or a
Subsidiary of any duties inconsistent with, or a diminution
of, the Executive's position, duties, titles, offices,
responsibilities or status with the Company or a Subsidiary
immediately prior to a Change in Control, or any removal of
the Executive from or any failure to reelect the Executive
to any of such positions, except in connection with the
termination of the Executive's employment for Disability,
Retirement or Cause or as a result of the Executive's death
or by the Executive other than for Good Reason;
(ii) a reduction by the Company or a Subsidiary in the
Executive's base salary as in effect on the date hereof or
as the same may be increased from time to time during the
term of this Agreement or the Company's or Subsidiary's
failure to increase (within 15 months of the Executive's
last increase in base salary) the Executive's base salary
after a Change in Control in an amount which is substan-
tially similar, on a percentage basis, to the average
percentage increase in base salary for all officers of the
Company or the Subsidiary effected during the preceding 12
months, other than a reduction of the Executive's base
salary pursuant to the terms of the Company's short-term
disability plan or long-term disability plan during a period
in which the Executive is disabled (within the meaning of
such plan or plans) and qualifies for benefits under such
plan or plans;
(iii) any failure by the Company or a Subsidiary to
continue in effect any benefit plan or arrangement
(including, without limitation, any pension or retirement
plan, group life insurance plan, medical, dental, accident
and disability plans and educational assistance reimburse-
ment plan) in which the Executive is participating at the
time of a Change in Control (or to substitute and continue
other plans providing the Executive with substantially
similar benefits) (hereinafter referred to as "Benefit
Plans"), the taking of any action by the Company or a
Subsidiary which would adversely affect the Executive's
participation in or materially reduce the Executive's
benefits under any such Benefit Plan or deprive the
Executive of any material fringe benefit enjoyed by the
Executive at the time of a Change in Control, or the
failure by the Company or Subsidiary to provide the
Executive with the number of paid vacation days to which
the Executive is entitled in accordance with the vacation
policies in effect at the time of a Change in Control;
(iv) any failure by the Company or a Subsidiary to
continue in effect any incentive plan or arrangement
(including, without limitation, the Company's annual bonus
and contingent bonus arrangements and credits and the right
to receive performance awards and similar incentive
compensation benefits) in which the Executive is partici-
pating at the time of a Change in Control (or to substitute
and continue other plans or arrangements providing the
Executive with substantially similar benefits) (hereinafter
referred to as "Incentive Plans") or the taking of any
action by the Company or a Subsidiary which would adversely
affect the Executive's participation in any such Incentive
Plan or reduce the Executive's benefits under any such
Incentive Plan in an amount which is not substantially
similar, on a percentage basis, to the average percentage
reduction of benefits under any such Incentive Plan effected
during the preceding 12 months for all officers of the
Company or a Subsidiary participating in any such Incentive
Plan;
(v) any failure by the Company or a Subsidiary to
continue in effect any plan or arrangement to receive
securities of the Company (including, without limitation,
the Company's Stock Incentive Plan and any other plan or
arrangement to receive and exercise stock options, stock
appreciation rights, restricted stock or grants thereof or
to acquire stock or other securities of the Company) in
which the Executive is participating at the time of a Change
in Control (or to substitute and continue plans or
arrangements providing the Executive with substantially
similar benefits) (hereinafter referred to as "Securities
Plans") or the taking of any action by the Company or a
Subsidiary which would adversely affect the Executive's
participation in or materially reduce the Executive's
benefits under any such Securities Plan;
(vi) a relocation of the Company's principal executive
offices or the Executive's relocation to any metropolitan
area other than the metropolitan area in which the Executive
performed the Executive's duties prior to a Change in
Control;
(vii) a substantial increase in business travel
obligations over such obligations as they existed at the
time of a Change in Control;
(viii) any material breach by the Company or a
Subsidiary of any provision of this Agreement;
(ix) any failure by the Company to obtain the
assumption of this Agreement by any successor or assign of
the Company pursuant to Section 7(a); or
(x) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 3(f),
including any purported termination under the circumstances
described in the last sentence of Section 3(a).
(f) Notice of Termination. Any termination of the
Executive's employment by the Company or a Subsidiary pursuant to
Section 3(b), 3(c) or 3(d) or by the Executive pursuant to Section
3(e) shall be communicated to the other party by a Notice of
Termination. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which shall indicate the
specific termination provision in this Agreement relied upon and
which 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. For purposes of this
Agreement, no such purported termination by the Company or
Subsidiary shall be effective without such Notice of Termination.
(g) Date of Termination. "Date of Termination" shall
mean (a) if this Agreement is terminated by the Company or a
Subsidiary for Disability, 30 days after Notice of Termination is
given to the Executive (provided that the Executive shall not have
returned to the performance of the Executive's duties on a full-time
basis during such 30-day period) or (b) if the Executive's employ-
ment is terminated for any other reason, the date on which a Notice
of Termination is given.
4. Severance Compensation upon Termination. (a) If the
Executive's employment by the Company or a subsidiary is terminated
(i) by the Company or Subsidiary pursuant to Section 3(b), 3(c) or
3(d) or by reason of death or (ii) by the Executive other than for
Good Reason, the Executive shall not be entitled to any severance
compensation under this Agreement, but the absence of the
Executive's entitlement to any benefits under this Agreement shall
not prejudice the Executive's right to the full realization of any
and all other benefits to which the Executive shall be entitled
pursuant to the terms of any employee benefit plans or other agree-
ments of the Company or a Subsidiary in which the Executive is a
participant or to which the Executive is a party.
(b) If the Executive's employment by the Company or a
Subsidiary is terminated (a) by the Company or such Subsidiary other
than pursuant to Section 3(b), 3(c) or 3(d) or by reason of death or
(b) by the Executive for Good Reason, then the Executive shall be
entitled to the severance compensation provided below:
(i) In lieu of any further salary or incentive
payments to the Executive for periods subsequent to the
Date of Termination, the Company shall pay in cash as
severance compensation to the Executive at the time
specified in subsection (ii) below, a lump-sum severance
payment equal to three (3) times the Executive's Adjusted
Annual Compensation. For purposes of this Agreement,
"Adjusted Annual Compensation" shall mean the sum of (x)
an amount equal to the highest level of the Executive's
annual base salary in effect between the time of the
Change in Control and the time a Notice of Termination is
given, (y) an amount equal to the greater of the amounts
earned by the Executive under the Company's Management
Incentive Compensation Plan (or any successor plan) for
the two preceding calendar years, or, if the Executive has
participated in such Plan for only one year, an amount
equal to the amount earned under such Plan for the
preceding calendar year, and (z) an amount equal to one-
third of the sum of the amounts of the current "Target"
values for the Executive under the Company's Management
Incentive Compensation Plan and Long Term Performance
Compensation Plan, respectively, such Target values to be
prorated from the beginning of the applicable measurement
period for each such Plan through the end of the month in
which the Date of Termination occurs. If the Date of
Termination occurs after the Executive reaches age 62,
such lump-sum severance payment shall be equal to the
Executive's Adjusted Annual Compensation multiplied by a
fraction of which the numerator shall be the number of
months from such date until the Executive reaches age 65
and the denominator shall be twelve (12).
(ii) The severance compensation provided for in
subsection (i) above shall be paid not later than the 10th
day following the Date of Termination; provided, however,
that, if the amount of such compensation cannot be finally
determined on or before such day, the Company shall pay to
the Executive on such day an estimate, as determined in good
faith by the Company, of the minimum amount of such
compensation and shall pay the remainder of such
compensation (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Internal Revenue Code of 1986,
as amended (the "Code")) as soon as the amount thereof can
be determined, but in no event later than the 30th day after
the Date of Termination. In the event that the amount of
the estimated payment exceeds the amount subsequently deter-
mined to have been due, such excess shall constitute a loan
by the Company to the Executive payable on the 30th day
after demand by the Company (together with interest at the
rate provided in Section 1274 (b)(2)(B) of the Code,
commencing on the 31st day following such demand).
(iii) The Company shall arrange to provide the
Executive for a period of thirty-six (36) months following
the Date of Termination (or, if such date occurs after the
Executive reaches age 62, for a period equal to the number
of months after such date until the Executive reaches age
65) or until the Executive's earlier death, with life,
health, disability and accident insurance benefits and
a package of "executive benefits", including capital
assessments and dues for pre-existing club memberships
and the use of an automobile or an allowance therefor
(collectively, "Employment Benefits"), substantially
similar to those which the Executive was receiving
immediately prior to the Notice of Termination.
(iv) During the term of this Agreement and through the
period of thirty-six (36) months following the Date of
Termination (or, if such date occurs after the Executive
reaches age 62, for a period equal to the number of months
after such date until the Executive reaches age 65), all
benefits under the Company s pension plans, Executive
Retirement Plans and any other plan or agreement relating to
retirement benefits (collectively, "Retirement Benefits")
shall continue to accrue to the Executive, crediting of
service of the Executive with respect to Retirement Benefits
shall continue, and the Executive shall be entitled to
receive all Retirement Benefits provided to the Executive as
a fully vested participant under any such plan or agreement
relating to retirement benefits. No contributions shall be
required to be made by the Executive to the Executive
Retirement Plans, or any other such plan providing for
employee contributions, following the Date of Termination.
To the extent that the amount of any Retirement Benefits are
or would be payable from a nonqualified plan, the Company
shall, as soon as practicable following the Date of
Termination, pay directly to the Executive in one lump sum
an amount equal to the additional benefits that would have
been provided had such accrual or crediting been taken into
account in calculating such Retirement Benefits. Such lump
sum payment shall be calculated as provided in the relevant
plan and, in the case of a defined contribution plan, shall
include an amount equal to the gross amount of the maximum
employer contributions.
(c) In the event the severance compensation payable
under this Section 4, either alone or together with any other
payments to the Executive from the Company or a Subsidiary
(including, but not limited to, payments under the Company's Stock
Incentive Plan or any agreement or award issued pursuant to such
Plan or any successor plan), would constitute a "parachute payment"
(as defined in Section 280G of the Code), and subject the Executive
to the excise tax imposed by Section 4999 of the Code, the Company
shall pay the Executive, as additional severance compensation
hereunder and payable at the same time or times as such severance
compensation, the amount of such excise tax and any additional taxes
payable by the Executive by reason of such payment (on the basis of
a customary "gross-up" formula), as calculated by the Company. The
Company agrees to indemnify and hold harmless the Executive from and
against any liability for the payment of additional taxes arising
from any deficiency in the amount of such excise tax and any
additional taxes thereon so calculated by the Company, together with
any interest or penalties applicable thereto; provided, however,
that it shall be a condition of this obligation to indemnify and
hold harmless the Executive that the Executive shall have timely
notified the Company of any proposed assessment relating to any
claimed deficiency therein and offered the Company the right to
contest such assessment or participate in, at the expense of the
Company, any proceeding relating thereto.
5. Payment of Taxes; Continuation of Employment.
Notwithstanding any other provision of this Agreement or the
premises hereto, in the event the Executive is entitled to receive
compensation (whether in the form of cash, securities or other form
of compensation) under or pursuant to any plan or agreement of or
with the Company or a Subsidiary as the result of a Change in
Control, the Company shall pay to the Executive any applicable
excise tax, and any taxes thereon, and shall indemnify and hold
harmless the Executive in respect thereof, as provided in Section
4(c) above, regardless of whether the employment of the Executive
with the Company or a Subsidiary shall have terminated.
6. No Obligation To Mitigate Damages; No Effect on other
Contractual Rights. (a) The Executive shall not be required to
mitigate damages or the amount of any payment provided for under
this Agreement by seeking other employment or otherwise, nor shall
the amount of any payment provided for under this Agreement be
reduced by any compensation earned by the Executive as the result
of employment by another employer after the termination of the
Executive's employment or otherwise.
(b) The provisions of this Agreement, and any payment
provided for hereunder, shall not reduce any amounts otherwise
payable, or in any way diminish the Executive's existing rights, or
rights which would accrue solely as a result of the passage of time,
under any Benefit Plan, Incentive Plan or Securities Plan, employ-
ment agreement or other contract, plan or arrangement of the Company
or any Subsidiary.
7. Successor to the Company. (a) The Company will require
any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all the
business and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, expressly, absolutely and
unconditionally to assume 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 or assignment had taken
place. Any failure of the Company to obtain such agreement prior to
the effectiveness of any such succession or assignment shall be a
material breach of this Agreement and shall entitle the Executive to
terminate the Executive's employment for Good Reason. As used in
this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor or assign to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in
this Section 7 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees
and legatees. If the Executive should die while any amounts are
still payable to the Executive hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee, or
other designee or, if there be no such designee, to the Executive's
estate.
8. Notices. For purposes of this Agreement, notices and
all other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered
or mailed by United States certified mail, return receipt requested,
postage prepaid, as follows:
If to the Company:
▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention of: General Counsel
If to the Executive, to the Executive s home address as
shown on the Company s personnel records; or such other address as
either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall
be effective only upon receipt.
9. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Executive and the
Company. No waiver by either party hereto at any time of any breach
by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois.
10. Employment. The Executive agrees to be bound by the
terms and conditions of this Agreement and to remain in the employ
of the Company or Subsidiary during any period following any public
announcement by any person of any proposed transaction or trans-
actions which, if effected, would result in a Change in Control
until a Change in Control has taken place or, in the opinion of the
Board of Directors, such person has abandoned or terminated its
efforts to effect a Change in Control. Subject to the foregoing,
nothing contained in this Agreement shall impair or interfere in any
way with the right of the Executive to terminate the Executive's
employment or the right of the Company or any Subsidiary to
terminate the employment of the Executive with or without cause
prior to a Change in Control. Nothing contained in this Agreement
shall be construed as a contract of employment between the Company
or any Subsidiary and the Executive or as a right of the Executive
to continue in the employ of the Company or any Subsidiary, or as a
limitation of the right of the Company or any Subsidiary to
discharge the Executive with or without cause prior to a Change in
Control.
11. Validity. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
12. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
13. Legal Fees and Expenses. (a) The Company shall pay all
legal fees and expenses which the Executive may incur as a result of
the Company or a Subsidiary contesting the validity, enforceability
or the Executive's interpretation of, or determinations under, this
Agreement.
(b) The Company shall pay all legal fees and expenses
which the Executive may incur by reason of the termination of the
Executive s employment, other than as a result of (i) the
Executive s death, (ii) the Executive s Disability (as defined in
Section 3(b) above), (iii) the Executive s Retirement (as defined in
Section 3(c) above), (iv) the Executive s termination for Cause (as
defined in Section 3(d) above), or (v) the Executive s decision to
terminate employment other than for Good Reason (as defined in
Section 3(e) above; such fees and expenses shall include, without
limitation, those incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
(c) The Company shall pay all legal fees and expenses
which the Executive may incur as a result of any tax assessments or
proceedings arising from payments made by the Company pursuant to
Section 4(c) or Section 5 above.
(d) If the payment by the Company of any legal fees and
expenses pursuant to this Section 13 shall constitute compensation
to the Executive, the Company agrees, as a separate and independent
undertaking, to pay to the Executive upon demand any and all taxes,
of whatever nature or description, applicable to such payment,
together with any taxes thereon (on the basis of a customary "gross-
up" formula).
14. Confidentiality. The Executive shall retain in
confidence any and all confidential information known to the
Executive concerning the Company and its Subsidiaries and their
business so long as such information is not otherwise publicly
disclosed.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
▇▇▇▇▇▇▇ CORPORATION
By
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
EXECUTIVE
By
Name: