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EXHIBIT 10-J(4)
CHANGE OF CONTROL AGREEMENT
BETWEEN
▇▇▇▇ CORPORATION
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DATED DECEMBER 8, 1997
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TABLE OF CONTENTS
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SECTION PAGE
------- ----
Recitals.....................................................................1
OPERATION OF AGREEMENT; EMPLOYMENT AND TERM..................................6
POSITION AND DUTIES OF THE EXECUTIVE.........................................7
POSITION............................................................7
DUTIES..............................................................8
LOCATION OF OFFICE..................................................9
COMPENSATION.................................................................9
SALARY..............................................................9
ADDITIONAL COMPENSATION............................................10
INCENTIVE, STOCK AND SAVINGS PLANS.................................10
RETIREMENT AND WELFARE BENEFIT PLANS...............................10
EXPENSES...........................................................11
FRINGE BENEFITS....................................................11
OFFICE AND SUPPORT STAFF...........................................11
VACATION AND OTHER ABSENCES........................................11
BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES..........12
CERTAIN RETIREMENT AND SEVERANCE DEFINITIONS.......................13
TERMINATION OF EMPLOYMENT...................................................13
DEATH OR DISABILITY................................................13
CAUSE..............................................................14
GOOD REASON........................................................16
NOTICE OF TERMINATION..............................................17
DATE OF TERMINATION................................................17
OBLIGATIONS OF THE CORPORATION UPON TERMINATION.............................18
TERMINATION OTHER THAN FOR CAUSE...................................18
[intentionally left blank].........................................20
CAUSE; OTHER THAN FOR GOOD REASON..................................20
DEATH OR DISABILITY................................................20
RESOLUTION OF DISPUTES.............................................21
RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR ▇▇▇.................21
THIRD-PARTY STAKEHOLDER............................................21
NON-EXCLUSIVITY OF RIGHTS...................................................22
FULL SETTLEMENT.............................................................23
CONFIDENTIAL INFORMATION....................................................23
COMPETITION.................................................................24
SUCCESSORS..................................................................25
CERTAIN DEFINITIONS.........................................................25
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BENEFICIARY........................................................25
CHANGE OF CONTROL..................................................25
CHANGE OF CONTROL DATE.............................................27
CHANGE OF CONTROL PERIOD...........................................27
AMENDMENT OR MODIFICATION; WAIVER...........................................27
MISCELLANEOUS...............................................................28
Exhibit A....................................................................2
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DEFINED TERMS
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DEFINED TERMS* SECTION PAGE
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Accrued Obligation 5(a)(i)(3) 12
ACP 3(b) 4
Affiliate 2(a)(v) 3
Affiliated Company 3(a) 4
Agreement Introduction 1
Annual Base Salary 3(a) 4
Annual Bonus 3(b) 4
Beneficiary 11(a) 19
Board 3(a) 4
Cause 4(b) 8
Change of Control 11(b) 19
Change of Control Date 11(c) 21
Change of Control Period 11(d) 21
Code 5(a)(ii) 13
Competition 9(b) 18
Corporation Introduction 1
11(b) 28
14(e) 31
Date of Termination 4(e) 12
Disability 4(a)(ii) 8
Disability Effective Date 4(a)(ii) 8
Employment Period 1(b) 1
Executive Introduction 1
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*Each listed term is intended to include both the singular and plural form
of the term.
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DEFINED TERMS
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DEFINED TERMS* SELECTION PAGE
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Highest Average Monthly Compensation 3(j)(i) 7
Notice of Termination 4(d) 11
Pension and Retirement Program of the Corporation 3(j)(ii) 8
Renewal Date 1(d) 2
Service 3(j)(iii) 8
Subsidiary 2(a)(v) 3
Target Annual Bonus 3(b) 5
Terminal Date 1(c) 2
Termination 5(a) 12
Termination Period 5(a)(ii) 13
Welfare Benefit Continuation 5(a)(iii) 13
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*Each listed term is intended to include both the singular and plural form
of the term.
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THIS CHANGE OF CONTROL AGREEMENT (the "Agreement") made and
entered into as of this 8th day of December, 1997, by and between ▇▇▇▇
CORPORATION, a Virginia corporation whose principal place of business is located
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ (the "Corporation"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(the "Executive");
WHEREAS, the Executive is a principal executive officer of the
Corporation and an integral part of its management; and
WHEREAS, the Corporation wishes to assure both itself and the
Executive of continuity of management in the event of any actual or threatened
Change of Control of the Corporation; and
WHEREAS, this Agreement is not intended to alter materially
the compensation and benefits that the Executive could reasonably expect in the
absence of a Change of Control of the Corporation, and, accordingly, this
Agreement, though taking effect upon execution thereof, will be operative only
upon a Change of Control of the Corporation, as that term is hereafter defined;
NOW, THEREFORE, IN CONSIDERATION of the mutual promises,
covenants and agreements set forth below, it is hereby agreed as follows:
1. OPERATION OF AGREEMENT; EMPLOYMENT AND TERM.
(1) This Agreement shall be effective immediately upon its
execution by the parties hereto but, anything in this Agreement to the contrary
notwithstanding, neither the Agreement nor any provision thereof, except for
this Section 1(a), Section 1(d), Section 2(a)(ii), Section 10, Section 11(b),
▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇(▇), (▇), (▇), (▇), (▇) and (o), shall be operative
unless and until there has been a Change of Control of the Corporation, as
defined in Section 11(b) below, prior to December 31, 2000 or such later date as
shall result from the operation of Section 1(d) below and while the Executive is
in the employ of the Corporation. Upon such a Change of Control of the
Corporation, this Agreement and all provisions thereof shall become operative
immediately.
(2) The Corporation hereby agrees to continue the employment
of the Executive, and the Executive hereby agrees to remain in the employ of the
Corporation, in accordance with the terms and provisions of this Agreement, for
the period set forth below (the "Employment Period").
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(3) The Employment Period under this Agreement shall commence
on the date this Agreement becomes operative pursuant to the provisions of
Sections 1(a) above and, subject only to the provisions of Section 4 below
relating to termination of employment, shall continue until (i) the close of
business on December 31, 2000 or (ii) such later date as shall result from the
operation of Section 1(d) below (the "Terminal Date"). In the event that the
Executive shall continue in the full-time employment of the Corporation after
the latter date, such continued employment shall be subject to the terms and
conditions of this Agreement and the Employment Period shall include the period
during which the Executive in fact so continues in such employment.
(4) Commencing on December 31, 1998, and on each anniversary
of such date (such date and each such annual anniversary thereof, the "Renewal
Date"), the Terminal Date set forth in Section 1(c) above shall be extended so
as to occur three (3) years from the Renewal Date unless either party shall have
given notice to the other party that the Terminal Date is not to be extended or
further extended.
2. POSITION AND DUTIES OF THE EXECUTIVE.
(1)POSITION.
(1) It is contemplated that during the Employment Period the
Executive will continue to serve as a principal officer of the
Corporation and as a member of its Board of Directors if serving as a
member of the Board of Directors immediately prior to a Change of
Control, as defined in Section 11(b) below, with the office(s) and
title(s), reporting responsibility and duties and responsibilities of
the Executive on the date of this Agreement, as the same may be changed
from time to time after the date of this Agreement and prior to the
date this Agreement becomes operative pursuant to the provisions of
Section 1(a) above.
(2) The office(s), title(s), reporting responsibility, duties
and responsibilities of the Executive on the date of this Agreement, as
the same may be changed from time to time after the date of this
Agreement and prior to the date this Agreement becomes operative
pursuant to the provisions of Section 1(a) above, shall be summarized
in Exhibit A to this Agreement, it being understood and agreed that if,
as when the office(s), title(s), reporting responsibility, duties and
responsibilities of the Executive shall be changed prior to the date
this Agreement becomes operative pursuant to the provisions of Section
1(a) above, Exhibit A shall be deemed to be and shall be updated by the
parties to reflect such change; PROVIDED, HOWEVER, that Exhibit A is
intended only as memorandum for the convenience of the parties and
shall be disregarded if and to the extent
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that, at the time this Agreement becomes operative, Exhibit A shall
fail to reflect accurately the office(s), title(s), reporting
responsibility, duties or responsibilities of the Executive at the time
because the parties shall have failed to update Exhibit A as aforesaid
after the last such change prior to the date this Agreement shall have
become operative.
(3) At all times during the Employment Period, the Executive
shall hold a position of responsibility and importance and a position
of scope, with the functions, duties and responsibilities attached
thereto, at least equal in responsibility and importance and in scope
to and commensurate with his position described in general terms above
in this Section 2(a) and intended to be summarized in Exhibit A to this
Agreement.
(4) During the Employment Period the Executive shall, without
compensation other than that herein provided, also serve and continue
to serve, if and when elected and re-elected, as an officer or
director, or both, of any United States Subsidiary, division or
Affiliate of the Corporation.
(5) For all purposes of this Agreement, (1) a Subsidiary shall
mean a corporation or other entity, of which 50% or more of the voting
securities or other equity interests is owned directly, or indirectly
through one or more intermediaries, by the Corporation, and (2) an
Affiliate shall mean a corporation or other entity which is not a
Subsidiary and which directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Corporation. For the purpose of this definition, the
terms "control", "controls" and "controlled" mean the possession,
direct or indirect, of the power to direct or cause the direction of
the management and policies of a corporation or other entity, whether
through the ownership of voting securities, by contract, or otherwise.
(2) DUTIES. Throughout the Employment Period the Executive
shall devote his full time and undivided attention during normal business hours
to the business and affairs of the Corporation except for reasonable vacations
and except for illness or incapacity, but nothing in this Agreement shall
preclude the Executive from devoting reasonable periods required for:
(1) serving as a director or member of a committee or
any organization involving no conflict of interest with the interests
of the Corporation;
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(2) delivering lectures, fulfilling speaking
engagements, teaching at educational institutions;
(3) engaging in charitable and community activities;
and
(4) managing his personal investments;
PROVIDED that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement.
(3) LOCATION OF OFFICE. During the Change of Control Period,
the office of the Executive shall be located at the principal offices of the
Corporation, within the greater Toledo, Ohio area, and the Executive shall not
be required to locate his office elsewhere without his prior written consent,
nor shall he be required to be absent therefrom on travel status or otherwise
more than thirty (30%) of the working days in any calendar year nor for more
than ten (10) consecutive days at any one time.
3. COMPENSATION.
The Executive shall receive the following compensation for his
services:
(1) SALARY. So long as the Executive is employed by the
Corporation, he shall be paid an annual base salary, payable not less often than
monthly, at the rate of not less than $32,083.33 per month with such increases
as shall be awarded from time to time in accordance with the Corporation's
regular administrative practices of other salary increases applicable to
executives of the Corporation, subject to any and all required withholdings and
deductions for Social Security, income taxes and the like (the "Annual Base
Salary"). The Board of Directors of the Corporation (the "Board") may from time
to time direct such upward adjustments to Annual Base Salary as the Board deems
to be necessary or desirable; PROVIDED, HOWEVER, that during the Change of
Control Period (as defined in Section 11(d) below), the Annual Base Salary shall
be reviewed at least annually and shall be increased at any time and from time
to time but not less often than annually and shall be substantially consistent
with increases in base salary generally awarded in the ordinary course of
business to other senior executives of the Corporation and its Affiliated
Companies (a term which, as used in this Agreement, shall mean a Subsidiary or
Affiliate of the Corporation) and, in addition, shall be adjusted effective as
of January lst of each calendar year commencing in the Change of Control Period
to reflect increases in the cost of living during the preceding calendar year.
Annual Base Salary shall not be reduced after any increase thereof pursuant to
this Section 3(a). Any increase in Annual Base Salary shall not serve to limit
or reduce any other obligation of the Corporation under this Agreement.
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(2) ADDITIONAL COMPENSATION. So long as the Executive is
employed by the Corporation, he shall be eligible to receive annual short-term
incentive awards or bonuses (such award or bonus is hereinafter referred to as
"Short-Term Award" or "Annual Bonus") from the ▇▇▇▇ Corporation Additional
Compensation Plan, and from any successor or replacement plan (the ▇▇▇▇
Corporation Additional Compensation Plan and such successor or replacement plans
being referred to herein collectively as the "ACP"), in accordance with the
terms thereof; PROVIDED, HOWEVER, that, with respect to each fiscal year of the
Corporation ending during the Change of Control Period, the Executive shall be
awarded (whether under the terms of the ACP or otherwise) an Annual Bonus in an
amount that shall not be less than fifty percent (50%) of his Annual Base Salary
rate in effect on the last day of such fiscal year (which amount shall be
prorated if such fiscal year shall be less than 12 months) (the "Target Annual
Bonus"). Each 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, unless the receipt of such Annual Bonus is deferred in
accordance with the terms of the ACP.
(3) INCENTIVE, STOCK AND SAVINGS PLANS. So long as the
Executive is employed by the Corporation, he shall be and continue to be a full
participant in the ▇▇▇▇ Corporation 1997 Stock Option Plan, the ACP (providing
for Short-Term Awards) and in any and all other incentive, stock, savings or
retirement plans, practices or policies in which executives of the Corporation
participate that are in effect on the date hereof and that may hereafter be
adopted, including, without limitation, any stock option, stock purchase or
stock appreciation plans, or any successor plans that may be adopted by the
Corporation with, except in the case of the ACP after the commencement of the
Change of Control Period, at least the same reward opportunities, if any, that
have heretofore been provided to the Executive. Nothing in this Agreement shall
preclude improvement of reward opportunities in such plans or other plans in
accordance with the practices in effect on the first day of the calendar month
that this Agreement becomes operative. Any provision of the ACP or of this
Agreement to the contrary notwithstanding, any Short-Term Awards made to the
Executive (whether for services rendered prior to or after the date this
Agreement becomes operative) shall be paid wholly in cash as soon as practicable
after the awards are made.
(4) RETIREMENT AND WELFARE BENEFIT PLANS. The Executive, his
dependents and Beneficiary, including, without limitation, any beneficiary of a
joint and survivor or other optional method of payment applicable to the payment
of benefits under the Pension and Retirement Program of the Corporation, as
defined in Section 3(j)(ii) below, shall be entitled to all payments and
benefits and service credit for benefits during the Employment Period to which
other senior executives of the Corporation, their dependents and their
beneficiaries are entitled under the terms of employee retirement and welfare
benefit plans and practices of the Corporation, including, without limitation,
the Pension and Retirement Program of the Corporation (as defined in Section
3(j)(ii) below), the Corporation's Savings
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and Investment Plan, its Stock Purchase Plan, its Stock Award Plan, its Income
Protection Plan for Management and Certain Other Employees providing layoff and
severance benefits, its 1989 Restricted Stock Plan, its Excess Benefits Plan,
its Supplemental Benefits Plan, its death benefit plans (consisting of its Group
Insurance Plan for Management Employees providing life insurance, accidental
death and dismemberment insurance, and travel accident insurance), its
disability benefit plans (consisting of its salary continuation, sickness and
accident and long-term disability benefits programs), its medical, dental and
health and welfare plans and other present or equivalent successor plans and
practices of the Corporation, its Subsidiaries and divisions, for active and
retired employees, for which officers, their dependents and beneficiaries, are
eligible, and to all payments or other benefits under any such plan or practice
subsequent to the Employment Period as a result of participation in such plan or
practice during the Employment Period.
(5) EXPENSES. So long as the Executive is employed by the
Corporation, he shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with the polices,
practices and procedures of the Corporation and its Affiliated Companies from
time to time in effect, commensurate with his position and on a basis at least
comparable to that of other senior executives of the Corporation.
(6) FRINGE BENEFITS. So long as the Executive is employed by
the Corporation, he shall be entitled to fringe benefits, including, without
limitation, the business and personal use of an automobile, and payment or
reimbursement of club initiation fees and dues, in accordance with the plans,
practices, programs and policies of the Corporation and its Affiliated Companies
from time to time in effect, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(7) OFFICE AND SUPPORT STAFF. So long as the Executive is
employed by the Corporation, he 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, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(8) VACATION AND OTHER ABSENCES. So long as the Executive is
employed by the Corporation, he shall be entitled to paid vacation and such
other paid absences whether for holidays, illness, personal time or any similar
purposes, in accordance with the plans, policies, programs and practices of the
Corporation and its Affiliated Companies in effect from time to time,
commensurate with his position and at least comparable to those received by
other senior executives of the Corporation.
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(9) BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES.
Nothing in this Agreement shall preclude the Corporation from amending or
terminating any employee benefit or welfare plan or practice, but, it being the
intent of the parties that the Executive shall continue to be entitled during
the Employment Period to perquisites as set forth in this Section 3 and to
benefits and service credit for benefits under Section 3(d) above at least equal
to those attached to his position on the date of this Agreement (except that, in
converting a monthly retirement benefit, which is payable under any plan that is
a component of the Pension and Retirement Program of the Corporation, into a
lump sum payment, the lump sum distribution shall be actuarially equivalent to
the monthly benefit provided under such Pension and Retirement Program,
calculated using the following basis, whichever produces a larger lump sum
amount: (x) the lump sum amount calculated on the basis of the "applicable
interest rate" (as in effect for the November preceding the calendar year in
which the calculation is made) and the "applicable mortality table", both as
defined in Section 417(e) of the Internal Revenue Code; or (y) the lump sum
amount calculated on the basis of the actuarial equivalent factor used to
convert the Executive's Earned Benefit Account into a life annuity under the
▇▇▇▇ Corporation Retirement Plan at the time the calculation was made), and
except as provided in the last sentence of this Section 3(i), nothing in this
Agreement shall operate or be construed to reduce, or authorize a reduction
without the Executive's written consent in, the level of such perquisites,
benefits or service credit for benefits; in the event of any such reduction, by
amendment or termination of any plan or practice or otherwise, the Executive,
his dependents and Beneficiary, shall continue to be entitled to perquisites,
benefits and service credit for benefits at least equal to the perquisites,
benefits and service credit for benefits under such plans or practices that he
or his dependents and Beneficiary would have received if such reduction had not
taken place. If and to the extent that such perquisites, benefits and service
credits are not payable or provided under any such plans or practices by reason
of such amendment or termination thereof, the Corporation itself shall pay or
provide therefor. Notwithstanding the foregoing provisions of this Section 3(i),
the Executive hereby waives the benefit of the foregoing minimum benefit
protection only as it applies to the ▇▇▇▇ Corporation Savings and Investment
Plan, and to its medical, dental and health plans for active and retired
employees. The Executive expressly does not waive the application of the
foregoing minimum benefit protection to any of the other benefit plans, programs
or practices enumerated in Section 3 above, including, without limitation, the
Pension and Retirement Program of the Corporation, its death benefit plans, its
disability benefit plans, and its Income Protection Plan for Management and
Certain Other Employees. The Executive reserves the right to cancel the above
waiver, prospectively, at any future time by giving written notice to the
Corporation of such cancellation. Nothing in this Section 3(i) shall be
construed to prohibit the Corporation from amending or terminating any employee
benefit or welfare plan or practice to reduce benefits, so long as such
reduction applies to all salaried Corporation employees covered by such plan or
practice equally and such reduction is adopted prior to the commencement of the
Change of Control Period.
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(10) CERTAIN RETIREMENT AND SEVERANCE DEFINITIONS.
(1) The term "Highest Average Monthly Compensation"
shall mean the sum of (1) one-twelfth (1/12) of the Annual Base Salary
provided in Section 3(a) at the rate being paid at the time the
Executive's termination of employment occurred, and (2) one-twelfth
(1/12) of the average of the highest Annual Bonuses payable to the
Executive for any three (3) consecutive full or partial fiscal years
during his employment by the Corporation, PROVIDED, HOWEVER, that with
respect to 1994 and subsequent years' Annual Bonuses, only that portion
of the Employee's Annual Bonus as does not exceed 125% of his Annual
Base Salary will be considered.
(2) The term "Pension and Retirement Program of the
Corporation" shall mean the ▇▇▇▇ Corporation Retirement Plan, the ▇▇▇▇
Corporation Excess Benefits Plan, the ▇▇▇▇ Corporation Supplemental
Benefits Plan, and any other supplemental, early retirement and similar
plan or plans of the Corporation, its Subsidiaries and Affiliates,
providing for pension or retirement benefits that may be applicable to
the Executive and that are in effect on the date hereof or may
hereafter be adopted or substituted for any such plan, but exclusive of
the ▇▇▇▇ Corporation Savings and Investment Plan and any similar plan
or plans.
(3) The term "Service" shall mean employment as an
employee by the Corporation, any Subsidiary or Affiliate thereof or any
corporation the capital stock or assets of which have been acquired by,
or which has been merged into or consolidated with the Corporation or
any Subsidiary or Affiliate thereof.
4. TERMINATION OF EMPLOYMENT.
(1) DEATH OR DISABILITY.
(1) The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period.
(2) If the Corporation determines in good faith that
the Disability (as defined below) of the Executive has occurred during
the Employment Period, it may give to the Executive written notice in
accordance with Section 13(b) below of its intention to terminate the
Executive's employment. In such event, the Employment Period shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), PROVIDED, that
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within the 30 days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Corporation 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 Corporation or its
insurers and acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
(2) CAUSE. The Corporation may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, the termination of the Executive's employment shall be deemed to have
been for "Cause" only
(1) if termination of his employment shall have been
the result of his conviction of, or plea of guilty or nolo contendere
to, the charge of having committed a felony (whether or not such
conviction is later reversed for any reason), or
(2) if there has been a breach by the Executive
during the Employment Period of the provisions of Section 2(b),
relating to the time to be devoted to the affairs of the Corporation,
or of Section 8, relating to confidential information, and such breach
results in demonstrably material injury to the Corporation, and, with
respect to any alleged breach of Section 2(b) hereof, the Executive
shall have either failed to remedy such alleged breach within thirty
days from his receipt of written notice from the Secretary of the
Corporation pursuant to resolution duly adopted by the Board of
Directors of the Corporation after notice to the Executive and an
opportunity to be heard demanding that he remedy such alleged breach,
or shall have failed to take all reasonable steps to that end during
such thirty-day period and thereafter;
PROVIDED, that there shall have been delivered to the Executive a certified copy
of a resolution of the Board of Directors of the Corporation adopted by the
affirmative vote of not less than three-fourths of the entire membership of the
Board of Directors called and held for that purpose and at which the Executive
was given an opportunity to be heard, finding that the Executive was guilty of
conduct set forth in subparagraph (i) or (ii) above, specifying the particulars
thereof in detail.
Anything in this Section 4(b) or elsewhere in this Agreement to the
contrary notwithstanding, the employment of the Executive shall in no event be
considered to have been terminated by the Corporation for Cause if termination
of his employment took place
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(1) as the result of bad judgment or negligence on the part of
the Executive, or
(2) because of an act or omission believed by the
Executive in good faith to have been in or not
opposed to the interests of the Corporation, or
(3) for any act or omission in respect of which a
determination could properly be made that the
Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or
payment of expenses under (A) the Bylaws of the
Corporation, or (B) the laws of the State of
Virginia, or (C) the directors' and officers'
liability insurance of the Corporation, in each
case either as in effect at the time of this
Agreement or in effect at the time of such act or
omission, or
(4) as the result of an act or omission which occurred
more than twelve calendar months prior to the
Executive's having been given notice of the
termination of his employment for such act or
omission unless the commission of such act or such
omission could not at the time of such commission
or omission have been known to a member of the
Board of Directors of the Corporation (other than
the Executive, if he is then a member of the Board
of Directors), in which case more than twelve
calendar months from the date that the commission
of such act or such omission was or could
reasonably have been so known, or
(5) as the result of a continuing course of action
which commenced and was or could reasonably have
been known to a member of the Board of Directors of
the Corporation (other than the Executive, if he is
then a member of the Board of Directors) more than
twelve calendar months prior to notice having been
given to the Executive of the termination of his
employment.
(3) GOOD REASON. The Executive may terminate his employment
during the Employment Period for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean the occurrence of any of the following events:
(1) Failure to elect or reelect the Executive to the
Board of Directors of the Corporation, if the Executive shall have been
a member of the Board of Directors on the date of this Agreement or at
any time thereafter during the Employment Period, or failure to elect
or reelect the Executive to, or removal
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of the Executive from, the office(s) described in Section 2(a) above
and intended to be summarized in Exhibit A to this Agreement.
(2) A significant change in the nature or scope of
the authorities, powers, functions or duties attached to the position
described in Section 2 above and intended to be summarized in Exhibit A
to this Agreement, or a reduction in compensation, which is not
remedied within 30 days after receipt by the Corporation of written
notice from the Executive.
(3) A determination by the Executive made in good
faith that as a result of a Change of Control, and a change in
circumstances thereafter and since the date of this Agreement
significantly affecting his position, he is unable to carry out the
authorities, powers, functions or duties attached to his position and
contemplated by Section 2 of this Agreement and the situation is not
remedied within 30 days after receipt by the Corporation of written
notice from the Executive of such determination.
(4) A breach by the Corporation of any provision of
this Agreement not embraced within the foregoing clauses (i), (ii) and
(iii) of this Section 4(c) which is not remedied within 30 days after
receipt by the Corporation of written notice from the Executive.
(5) The liquidation, dissolution, consolidation or
merger of the Corporation or transfer of all or a significant portion
of its assets unless a successor or successors (by merger,
consolidation or otherwise) to which all or a significant portion of
its assets have been transferred shall have assumed all duties and
obligations of the Corporation under this Agreement but without
releasing the corporation that is the original party to this Agreement;
PROVIDED, that in any event set forth in this Section 4(c), the Executive shall
have elected to terminate his employment under this Agreement, upon not less
than ten and not more than ninety days' advance written notice to the
Corporation, attention of the Secretary, given, except in the case of a
continuing breach, within three calendar months after (A) failure to be so
elected or reelected, or removal, (B) expiration of the thirty-day cure period
with respect to such event, or (C) the closing date of such liquidation,
dissolution, consolidation, merger or transfer of assets, as the case may be.
An election by the Executive to terminate his employment given under
the provisions of this Section 4(c) shall not be deemed a voluntary termination
of employment by the Executive for the purpose of this Agreement or any plan or
practice of the Corporation.
17
(4) NOTICE OF TERMINATION. Any termination by the Corporation
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 13(b)
below. For purposes of this Agreement, a "Notice of Termination" means a written
notice which
(1) indicates the specific termination provision in this
Agreement relied upon,
(2) 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 and
(3) if the Date of Termination (as defined in Section 4(e)
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).
(5) DATE OF TERMINATION. "Date of Termination" means
(1) if the Executive's employment is terminated by the
Corporation for Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein, as the case may be,
(2) if the Executive's employment is terminated by the
Corporation other than for Cause or Disability, the Date of Termination
shall be the date on which the Corporation notifies the Executive of
such termination and
(3) 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.
5. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(1) TERMINATION OTHER THAN FOR CAUSE. If, during the
Employment Period, the Corporation shall terminate the Executive's employment
other than for Cause or the Executive shall terminate his employment following a
Change of Control for Good Reason (termination in any such case referred to as
"Termination"):
(1) the Corporation shall pay the Executive in a lump sum in
cash within 30 days after the Date of Termination the sum of
18
(1) the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid,
(2) the product of (x) the Target Annual Bonus and (y) 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
(3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid
(the sum of the amounts described in clauses (1), (2), and (3) shall be
hereinafter referred to as the "Accrued Obligations"); and
(2) The Corporation shall pay the Executive in a lump
sum in cash within 30 days after the Date of Termination an amount
calculated based upon the present value (within the meaning of Section
280G(d)(4) of the Internal Revenue Code of 1986 as amended (the "Code")
of payments described as follows: at the end of the month next
following the Termination, and at the end of each month thereafter
until the earliest of the end of the Employment Period, three years
following the Date of Termination, or until the Executive shall attain
the age of 65 years, but in no event beyond the end of the month in
which the death of the Executive shall have occurred or the end of the
sixth month following the Disability Effective Date (such period to be
called the "Termination Period"), the Corporation would pay to the
Executive an amount equal to the Highest Average Monthly Compensation;
PROVIDED, HOWEVER, that such amount would be reduced by any other
amounts payable to the Executive in respect of salary or bonus
continuation to be received by the Executive under any severance plan,
policy or arrangement of the Corporation; and
(3) During the Termination Period, or such longer
period as any plan, program, practice or policy may provide, the
Corporation shall continue benefits to the Executive and/or 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 described in Section 3(d) above if the Executive's employment
had not been terminated in accordance with the most favorable plans,
practices, programs or policies of the Corporation and its Affiliated
Companies as in effect and applicable generally to other senior
executives of the Corporation and its Affiliated Companies and their
families during the 90-day period immediately preceding the Date of
Termination or, if more favorable to the Executive, as in effect at any
time thereafter or, if more favorable to the
19
Executive, as in effect generally at any time thereafter with respect
to other senior executives of the Corporation and its Affiliated
Companies and their families, PROVIDED, HOWEVER, that if the Executive
becomes reemployed 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 shall be
secondary to those provided under such other plan during such
applicable period of eligibility (such continuation of such benefits
for the applicable period herein set forth shall be hereinafter
referred to as "Welfare Benefit Continuation"). For purposes of
determining eligibility of the Executive for retiree benefits pursuant
to such plans, practices, programs and policies, the Executive shall be
considered to have remained employed until the end of the Termination
Period and to have retired on the date of the end of the Termination
Period. To the extent that any benefits referred to in this Section
5(a)(iii) shall not be payable or provided under any such plan by
reason of the Executive's no longer being an employee of the
Corporation as the result of Termination, the Corporation shall itself
pay, or provide for payment of, such benefits and the service credit
for benefits provided for in Section 5(a)(iv) below, to the Executive,
his dependents and Beneficiary; and
(4) The period from the Date of Termination until the end of
the Termination Period shall be considered:
(1) Service with the Corporation for the purpose of
continued credits under the employee benefit plans
referred to in Section 3(d) above and all other
benefit plans of the Corporation applicable to the
Executive or his Beneficiary as in effect
immediately prior to Termination but prior to any
reduction of benefits thereunder as the result of
amendment or termination during the Employment
Period; and
(2) Employment with the Corporation for purposes of
determining payments and other rights in respect of
awards made or accrued and award opportunities
granted prior to Termination under the executive
incentive plans referred to in Section 3(c) above
and all other incentive plans of the Corporation in
which the Executive was a participant prior to
Termination;
(5) to the extent not theretofore paid or provided, the
Corporation shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to be paid or
provided or which the Executive and/or the Executive's family is
eligible to receive pursuant to this Agreement and under any plan,
program, policy or practice or contract or agreement of the
20
Corporation and its Affiliated Companies as in effect and applicable
generally to other senior executives of the Corporation and its
Affiliated Companies and their families during the 90-day period
immediately preceding the Date of Termination or, if more favorable to
the Executive, as in effect generally thereafter with respect to other
senior executives of the Corporation and its Affiliated Companies and
their families (such other amounts and benefits shall be referred to
below as the "Other Benefits").
(2) [intentionally left blank]
(3) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause during the Employment Period, the
Corporation shall have no further obligations to the Executive under this
Agreement other than the obligation to pay the Executive's Annual Base Salary,
any compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon), and accrued vacation pay through the Date of
Termination, in each case to the extent not theretofore paid, and any other
amounts or benefits to which the Executive and/or the Executive's family is
otherwise entitled under the terms of any employee benefit or incentive plan of
the Corporation. If the Executive terminates employment during the Employment
Period, excluding a termination for Good Reason following a Change of Control,
the Corporation shall have no further obligations to the Executive, other than
to pay the Executive's Annual Base Salary, any compensation previously deferred
by the Executive (together with any accrued interest or earnings thereon), and
accrued vacation pay through the termination date, in each case to the extent
not theretofore paid, any other benefits to which the Executive and/or the
Executive's family is otherwise entitled under the terms of any employee benefit
or incentive plan of the Corporation.
(4) DEATH OR DISABILITY.
(1) In the event of the death of the Executive during
the Employment Period, the legal representative of the Executive shall
be entitled to the compensation provided for in Sections 3(a) and 3(b)
above for the month in which death shall have taken place, at the rate
being paid at the time of death, and the Employment Period shall be
deemed to have ended as of the close of business on the last day of the
month in which death shall have occurred but without prejudice to any
payments due in respect of the Executive's death.
(2) In the event of the Disability of the Executive
during the Employment Period, the Executive shall be entitled to the
compensation provided for in Sections 3(a) and 3(b) above, at the rate
being paid on the Disability Effective Date, for the period of such
Disability but not in excess of six months.
21
The amount of any payments due under this Section 5(d)(ii) shall be
reduced by any payments to which the Executive may be entitled for the
same period because of disability under any disability or pension plan
of the Corporation or of any Subsidiary or Affiliate thereof.
(5) RESOLUTION OF DISPUTES.
(1) RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR
▇▇▇. In the event that the Executive's employment shall be terminated
by the Corporation during the Employment Period and such termination is
alleged to be for Cause, or the Executive's right to terminate his
employment under Section 4(c) above shall be questioned by the
Corporation, or the Corporation shall withhold payments or provision of
benefits for any other reason, the Executive shall have the right, in
addition to all other rights and remedies provided by law, at his
election either to seek arbitration within the Toledo, Ohio area under
the rules of the American Arbitration Association by serving a notice
to arbitrate upon the Corporation or to institute a judicial
proceeding, in either case within ninety days after having received
notice of termination of his employment or notice in any form that the
termination of his employment under Section 4(b) above is subject to
question or that the Corporation is withholding or proposes to withhold
payments or provision of benefits.
(2) THIRD-PARTY STAKEHOLDER. In the event that the
Corporation defaults on any obligation set forth in Section 5(a) above,
relating to Termination, and shall have failed to remedy such default
within thirty (30) days after having received written notice of such
default from the Executive, in addition to all other rights and
remedies that the Executive may have as a result of such default, the
Executive may demand and the Corporation shall thereupon be required to
deposit, with the third-party stakeholder hereinafter described, an
amount equal to the undiscounted value of any and all undischarged,
future obligations of the Corporation under Section 5(a) above and such
amount shall thereafter be held, paid, applied or distributed by such
third-party stakeholder for the purpose of satisfying such
undischarged, future obligations of the Corporation when and to the
extent that they become due and payable. Any interest or other income
on such amount shall be retained by the third-party stakeholder and
applied, if necessary, by it to satisfy such obligations, provided,
HOWEVER, that any interest or other income that is earned on such
undischarged, future obligations after the date that the third-party
stakeholder determines, in its sole discretion, that such obligations
are due and owing to the Executive, shall be paid to the Executive as
earned. To the extent not theretofore expended, such amount (including
any remaining unexpended interest or other income) shall be
22
repaid to the Corporation at such time as the third-party stakeholder,
in its sole discretion, reasonably exercised, determines, upon the
advice of counsel and after consultation with the Corporation and the
Executive or, in the event of his death, his Beneficiary, that all
obligations of the Corporation under Section 5(a) above have been
substantially satisfied.
Such amount shall, in the event of any question, be determined
jointly by the firm of certified public accountants regularly employed
by the Corporation and a firm of certified public accountants selected
by the Executive, in each case upon the advice of actuaries to the
extent the certified public accountants consider necessary, and, in the
event such two firms of accountants are unable to agree on a resolution
of the question, such amount shall be determined by an independent firm
of certified public accountants selected jointly by both firms of
accountants.
The third-party stakeholder, the fees and expenses of which
shall be paid by the Corporation, shall be a national or state bank or
trust company having a combined capital, surplus and undivided profits
and reserves of not less than Ten Million Dollars ($10,000,000) which
is duly authorized and qualified to do business in the state in which
the Executive resides at the time of such default.
6. NON-EXCLUSIVITY OF RIGHTS.
Except as provided in Sections 5(a)(ii), 5(b) and 5(c) above, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the
Corporation 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 contract or agreement entered into after the date
hereof with the Corporation or any of its Affiliated Companies. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or any contract or agreement
entered into after the date hereof with, the Corporation 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 or contract or
agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT.
The Corporation'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 Corporation may
23
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 and, except as provided in Section 5(a)(iii) above, such amounts shall
not be reduced whether or not the Executive obtains other employment.
8. CONFIDENTIAL INFORMATION.
(1) The Executive agrees not to disclose, either while in the
Corporation's employ or at any time thereafter, to any person not employed by
the Corporation, or not engaged to render services to the Corporation, except
with the prior written consent of an officer authorized to act in the matter by
the Board of Directors of the Corporation, any confidential information obtained
by him while in the employ of the Corporation, including, without limitation,
information relating to any of the Corporation's inventions, processes,
formulae, plans, devices, compilations of information, methods of distribution,
customers, client relationships, marketing strategies or trade secrets;
PROVIDED, HOWEVER, that this provision shall not preclude the Executive from use
or disclosure of information known generally to the public or of information not
considered confidential by persons engaged in the business conducted by the
Corporation or from disclosure required by law or Court order. The agreement
herein made in this Section 8(a) shall be in addition to, and not in limitation
or derogation of, any obligations otherwise imposed by law upon the Executive in
respect of confidential information and trade secrets of the Corporation, its
Subsidiaries and Affiliates.
(2) The Executive also agrees that upon leaving the Corporation's
employ he will not take with him, without the prior written consent of an
officer authorized to act in the matter by the Board of Directors of the
Corporation, and he will surrender to the Corporation any record, list, drawing,
blueprint, specification or other document or property of the Corporation, its
Subsidiaries and Affiliates, together with any copy and reproduction thereof,
mechanical or otherwise, which is of a confidential nature relating to the
Corporation, its Subsidiaries and Affiliates, or, without limitation, relating
to its or their methods of distribution, client relationships, marketing
strategies or any description of any formulae or secret processes, or which was
obtained by him or entrusted to him during the course of his employment with the
Corporation.
9. COMPETITION.
(1) The Executive hereby agrees that he will not engage in Competition
at any time (i) during the Employment Period, and (ii) except in the event of a
Termination, during the thirty-six (36) months immediately following the
termination of his employment with the Corporation.
24
(2) The word "Competition" for the purposes of this Agreement shall
mean:
(1) taking a management position with or control of a business
engaged in the design, development, manufacture, marketing or
distribution of products, which constituted 15% or more of the sales of
the Corporation and its Subsidiaries and Affiliates during the last
fiscal year of the Corporation preceding the termination of the
Executive's employment, in any geographical area in which the
Corporation, its Subsidiaries or Affiliates is at the time engaging in
the design, development, manufacture, marketing or distribution of such
products; PROVIDED, HOWEVER, that in no event shall ownership of less
than 5% of the outstanding capital stock entitled to vote for the
election of directors of a corporation with a class of equity
securities held of record by more than 500 persons, standing alone, be
deemed Competition with the Corporation within the meaning of this
Section 9,
(2) soliciting any person who is a customer of the businesses
conducted by the Corporation, or any business in which the Executive
has been engaged on behalf of the Corporation and its Subsidiaries or
Affiliates at any time during the term of this Agreement on behalf of a
business described in clause (i) of this Section 9(b),
(3) inducing or attempting to persuade any employee of the
Corporation or any of its Subsidiaries or Affiliates to terminate his
employment relationship in order to enter into employment with a
business described in clause (i) of this Subsection 9(b), or
(4) making or publishing any statement which is, or may
reasonably be considered to be, disparaging of the Corporation or any
of its Subsidiaries or Affiliates, or directors, officers, employees or
the operations or products of the Corporation or any of its
Subsidiaries or Affiliates, except to the extent the Executive, during
the Employment Period, makes the statement to employees or other
representatives of the Corporation or any of its Subsidiaries or
Affiliates in furtherance of the Corporation's business and the
performance of his services hereunder.
10. SUCCESSORS.
Except as otherwise provided herein,
25
(1) This Agreement shall be binding upon and shall inure to
the benefit of the Executive, his heirs and legal representatives, and the
Corporation and its successors as provided in this Section 10.
(2) This Agreement shall be binding upon and inure to the
benefit of the Corporation and any successor of the Corporation, including,
without limitation, any corporation or corporations acquiring, directly or
indirectly, 50% or more of the outstanding securities of the Corporation, or all
or substantially all of the assets of the Corporation, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the term "the Corporation" for the purposes of this Agreement),
but shall not otherwise be assignable by the Corporation.
11. CERTAIN DEFINITIONS.
The following defined terms used in this Agreement shall have the
meanings indicated:
(3) BENEFICIARY. The term "Beneficiary" as used in this
Agreement shall, in the event of the death of the Executive, mean an individual
or individuals and/or an entity or entities, including, without limitation, the
Executive's estate, duly designated on a form filed with the Corporation by the
Executive to receive any amount that may be payable after his death or, if no
such individual, individuals, entity or entities has or have been so designated,
or is at the time in existence or able to receive any such amount, the
Executive's estate.
(4) CHANGE OF CONTROL. A "Change of Control" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(1) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Corporation (not including
in the securities Beneficially Owned by such Person any securities
acquired directly from the Corporation or its Affiliates) representing
20% or more of the combined voting power of the Corporation's then
outstanding securities, excluding any Person who becomes such a
Beneficial Owner in connection with a transaction described in clause
(1) of paragraph (iii) below; or
(2) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any new
director whose appointment or election by the Board or nomination for
election by the Corporation's stockholders was approved or recommended
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date hereof or whose
26
appointment, election or nomination for election was previously so
approved or recommended. For purposes of the preceding sentence, any
director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Corporation, shall not be counted; or
(3) there is consummated a merger or consolidation of
the Corporation or any direct or indirect Subsidiary of the Corporation
with any other corporation, other than (1) a merger or consolidation
which would result in the voting securities of the Corporation
outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof) at least 50% of the combined voting power of the securities of
the Corporation or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (2) a
merger or consolidation effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the
Corporation (not including in the securities Beneficially Owned by such
Person any securities acquired directly from the Corporation or its
Affiliates) representing 20% or more of the combined voting power of
the Corporation's then outstanding securities; or
(4) the stockholders of the Corporation approve a
plan of complete liquidation or dissolution of the Corporation or there
is consummated an agreement for the sale or disposition by the
Corporation of all or substantially all of the Corporation's assets,
other than a sale or disposition by the Corporation of all or
substantially all of the Corporation's assets to an entity, at least
50% of the combined voting power of the voting securities of which are
owned by stockholders of the Corporation in substantially the same
proportions as their ownership of the Corporation immediately prior to
such sale.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Corporation or any of its Subsidiaries, (ii) a trustee
or other fiduciary holding securities under an employee benefit plan of the
Corporation or any of its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities or (iv) a
27
corporation owned, directly or indirectly, by the stockholders of the
Corporation in substantially the same proportions as their ownership of stock of
the Corporation.
(5) CHANGE OF CONTROL DATE. The "Change of Control Date" shall
mean the first date on which a Change of Control occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change of Control occurs and if
the Executive's employment with the Corporation is terminated or the Executive
ceases to have the position with the Corporation set forth in Section 2(a) above
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination or cessation (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this Agreement the "Change of
Control Date" shall mean the date immediately prior to the date of such
termination or cessation.
(6) CHANGE OF CONTROL PERIOD. The "Change of Control Period"
shall mean the period commencing on the Change of Control Date and ending on the
last day of the Employment Period.
11. AMENDMENT OR MODIFICATION; WAIVER.
No provision of this Agreement may be amended, modified or waived
unless such amendment, modification or waiver shall be authorized by the Board
of Directors of the Corporation or any authorized committee of the Board of
Directors and shall be agreed to in writing, signed by the Executive and by an
officer of the Corporation thereunto duly authorized. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a subsequent
breach of such condition or provision or a waiver of a similar or dissimilar
provision or condition at the same time or at any prior or subsequent time.
12. MISCELLANEOUS.
(1) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, 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.
(2) 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:
28
If to the Executive: Copy to:
-------------------- --------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to the Corporation:
----------------------
▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(3) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(4) The Corporation may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as it determines is
required to be withheld pursuant to any applicable law or regulation.
(5) When used herein in connection with plans, programs and
policies relating to the Executive, employees, compensation, benefits,
perquisites, executive benefits, services and similar words and phrases, the
word "Corporation" shall be deemed to include all wholly-owned Subsidiaries of
the Corporation.
(6) This instrument contains the entire agreement of the
parties concerning the subject matter, and all promises, representations,
understandings, arrangements and prior agreements concerning the subject matter
are merged herein and superseded hereby.
(7) No right, benefit or interest hereunder, shall be subject
to anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt or obligation, or to
execution, attachment, levy or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void and of no effect.
29
(8) The Executive shall not have any right, title, or interest
whatsoever in or to any investments which the Corporation may make to aid it in
meeting its obligations under this Agreement.
(9) Subject to the provisions of Section 5(e) above, all
payments to be made under this Agreement shall be paid from the general funds of
the Corporation and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of amounts payable under
this Agreement.
(10) The Corporation and the Executive recognize that each
party will have no adequate remedy at law for breach by the other of any of the
agreements contained in this Agreement and, in the event of any such breach, the
Corporation and the Executive hereby agree and consent that the other shall be
entitled to a decree of specific performance, mandamus or other appropriate
remedy to enforce performance of such agreements.
(11) Subject to the provisions of Section 5(e) above, nothing
contained in this Agreement shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Corporation and the Executive
or any other person.
(12) Subject to the provisions of Section 5(e) above, to the
extent that any person acquires a right to receive payments from the Corporation
under this Agreement, except to the extent provided by law such right shall be
no greater than the right of an unsecured general creditor of the Corporation.
(13) In the event of the Executive's death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his legal representative or,
where appropriate, to his Beneficiary.
(14) If any event provided for in this Agreement is scheduled
to take place on a legal holiday, such event shall take place on the next
succeeding day that is not a legal holiday.
(15) This Agreement is not intended to and shall not infer or
imply any right on the part of the Executive to continue in the employ of the
Corporation, or any Subsidiary or Affiliate of the Corporation, prior to a
Change of Control, and is not intended in any way to limit the right of the
Corporation to terminate the employment of the Executive, with or without
assigning a reason therefor, at any time prior to a Change of Control. Nor is
this Agreement intended to nor shall it require or imply an obligation on the
part of the Executive to continue in the employment of the Corporation, or any
Subsidiary or Affiliate of the Corporation, prior to a Change of Control.
Neither the Corporation nor the
30
Executive shall incur any liability under this Agreement if the employment of
the Executive shall be terminated by the Corporation or by the Executive prior
to a Change of Control.
31
IN WITNESS WHEREOF, the Executive and, pursuant to due authorization
from its Board of Directors, the Corporation have caused this Agreement to be
executed as of the day and year first above written.
▇▇▇▇ CORPORATION
By: /s/ Southwood ▇. ▇▇▇▇▇▇▇
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Name: Southwood ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Chairman of the
Compensation Committee
Attest:
Assistant Secretary
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Executive
32
Exhibit A to Agreement
Made as of December 8, 1997 Between
▇▇▇▇ Corporation and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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As of December 8, 1997, for purposes of Section 2(a),
The office(s) and title(s) of the Executive are President--Automotive
Components Group of the Corporation;
the reporting responsibility of the Executive is to report directly to
the President of the Corporation; and
the duties and responsibilities of the Executive are:
Serves as the President of the Automotive Components Group of the
Corporation, in which capacity he has overall responsibility for
development and implementation of the Corporation's business strategy
for the automotive components market. Serves as a member of the Policy
Committee which sets the corporate style, strategies, policies and
goals that business operations of the Corporation are responsible for
in their performance. Serves as a member of the World Operating
Committee which monitors business unit performance, implements product
strategies, and takes corrective action in the event of non-performance
in the areas of meeting financial goals and implementation of market
strategies, and insures interaction between divisions and affiliates.
Serves on the Strategic Business Council.