EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT between ▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION, a Tennessee corporation
(the "Corporation"), and _____________________(the "Executive"), dated as of the
____day of ________, 2001.
The Corporation, on behalf of itself and its shareholders, wishes to
continue to attract and retain well-qualified executive and key personnel who
are an integral part of the management of the Corporation, such as Executive,
and to assure both itself of continuity of management and Executive of continued
employment in the event of any Change of Control (as defined in Section 2 of
this Agreement) of the Corporation;
IT IS, THEREFORE, AGREED:
1. OPERATION OF AGREEMENT. (a) The "Effective Date" shall be the date
during the "Change-of-Control Period" (as defined in Section 1(b)) on which a
Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if the Executive's employment with the Corporation is
terminated prior to the date on which a Change of Control occurs, and the
Executive can reasonably demonstrate that such termination (i) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change of Control or (ii) otherwise arose in connection with a Change of
Control, then for all purposes of this Agreement the "Effective Date" shall mean
the date immediately prior to the date of such termination.
(b) The "Change-of-Control Period" is the period commencing on the date
hereof and ending on the second anniversary of such date; provided, however,
that commencing on the first day of each month after the date hereof (each first
day of the month after the date hereof is hereinafter referred to as the
"Renewal Date"), the Change-of- Control Period shall be automatically extended
so as to terminate two years from such Renewal Date, unless at least 60 days
prior to the Renewal Date the Corporation shall give notice that the
Change-of-Control Period shall not be so extended.
2. CHANGE OF CONTROL. For the purpose of this Agreement, a "Change of
Control" shall, without limitation, be deemed to have occurred if:
(a) A third person, including a "group" as such term is used in Section
13(d)(3) of the Exchange Act, becomes the beneficial owner, directly or
indirectly, of 25% or more of the combined voting power of the Corporation's
outstanding voting securities ordinarily having the right to vote for the
election of directors of the Corporation; or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (the "Board" generally and as of the date hereof
the "Incumbent Board") cease for any reason to constitute at least a majority of
the Board, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board (other than an election or nomination of an
individual whose
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initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of the Corporation,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the "Exchange Act")) shall be, for purposes of
this Agreement, considered as though such person were a member of the incumbent
Board; or
(c) The consummation of (i) any consolidation, share exchange, merger
or amalgamation of the Corporation as a result of which the individuals and
entities who were the respective beneficial owners of the outstanding common
stock of the Corporation and the voting securities of the Corporation
immediately prior to such consolidation, share exchange, merger or amalgamation
do not beneficially own, immediately after such consolidation, share exchange,
merger or amalgamation, directly or indirectly, more than 50%, respectively, of
the common stock and combined voting power of the voting securities entitled to
vote of the company resulting from such consolidation, share exchange, merger or
amalgamation; or (ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all the
assets or earning power of the Corporation; or
(d) The approval by the shareholders of a plan of complete liquidation
or dissolution of the Corporation.
3. EMPLOYMENT PERIOD. The Corporation hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Corporation, for the
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period commencing on the Effective Date and ending on the third anniversary of
such date (the "Employment Period").
4. POSITION AND DUTIES. (a) During the Employment Period, (i) the
Executive's position (including status, offices, titles and reporting
relationships), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 90-day period immediately
preceding the Effective Date, and (ii) the Executive's services shall be
performed at the location where the Executive was employed immediately preceding
the Effective Date or any office or location less than thirty-five (35) miles
from such location.
Such position, authority, duties and responsibilities shall be regarded
as not commensurate if, as a result of a Change of Control, (i) the Corporation
becomes a direct or indirect subsidiary of another corporation or corporations
or becomes controlled, directly or indirectly, by one or more unincorporated
entities (such other corporation or unincorporated entity owning or controlling,
directly or indirectly, the greatest amount of equity (by vote) of the
Corporation is hereinafter referred to as a "Parent Company"), or (ii) all or
substantially all of the assets of the Corporation are acquired by another
corporation or unincorporated entity or group of corporations or unincorporated
entities owned or controlled, directly or indirectly, by another corporation or
unincorporated entity (such other acquiring or controlling corporation or
unincorporated entity is hereinafter referred to as a "Successor"), unless, in
each case, (x) Section
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13(c) of this Agreement shall have been complied with and (y) the Executive
shall have assumed a position with such Parent Company or Successor, as the case
may be, and the Executive's position, authority, duties and responsibilities
with such Parent Company or Successor, as the case may be, are at least
commensurate in all material respects with the most significant of those held,
exercised and assigned with the Corporation at any time during the 90-day period
immediately preceding the Effective Date, or (iii) more than one unrelated
corporation or unincorporated entity acquires a significant portion of the
assets of the Corporation.
(b) During the Employment Period, excluding periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the business and
affairs of the Corporation and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. The Executive may (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (iii) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the Executive prior to
the Effective Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date
shall not thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Corporation.
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5. COMPENSATION. (a) BASE SALARY. During the Employment Period, the
Executive shall receive a base salary ("Base Salary") at a monthly rate at least
equal to the highest monthly base salary paid to the Executive by the
Corporation, together with any of its affiliate companies, during the
twelve-month period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Base Salary shall be reviewed at least
annually and shall be increased at any time and from time to time as shall be
consistent with increases in base salary awarded in the ordinary course of
business to other key executives. Any increase in the Base Salary shall not
serve to limit or reduce any other obligation to the Executive under this
Agreement. The Base Salary shall not be reduced after any such increase. As used
in this Agreement, the term "affiliated companies" includes any company
controlling, controlled by or under common control with the Corporation.
(b) ANNUAL BONUS. In addition to the Base Salary, the Executive shall
be awarded, for each fiscal year of the Corporation ("Fiscal Year") during the
Employment Period, an annual bonus (an "Annual Bonus") (either pursuant to a
bonus, profit-sharing or incentive plan or program of the Corporation or
otherwise) in cash at least equal to the average bonus paid or payable to the
Executive in respect of each of the Fiscal Years (annualized with respect to any
such Fiscal Year for which the Executive has been employed only during a portion
thereof) during the three Fiscal Years immediately prior to the Fiscal Year in
which the Effective Date occurs. Each such Annual Bonus shall be paid no later
than March 15 of the Fiscal Year next following the Fiscal Year for which the
Annual Bonus is awarded, unless the Executive shall otherwise elect to defer the
receipt of such Annual Bonus.
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(c) INCENTIVE, SAVINGS AND RETIREMENT PLANS. In addition to the Base
Salary and Annual Bonus payable as hereinabove provided, the Executive shall be
entitled to participate, during the Employment Period, in all incentive, savings
and retirement plans and programs applicable to other key executives (including
the Corporation's restricted stock and stock option plans), but in no event
shall such plans and programs, in the aggregate, provide the Executive with
compensation, benefits and reward opportunities less favorable than the most
favorable of those provided by the Corporation and its affiliated companies for
the Executive under such plans and programs as in effect at any time during the
90-day period immediately preceding the Effective Date or, if more favorable to
the Executive, as provided at any time thereafter with respect to other key
executives.
(d) WELFARE BENEFIT PLANS. During the Employment Period, the Executive
and/or the Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under each welfare benefit plan
of the Corporation, including, without limitation, all medical, prescription,
dental, disability, salary continuance, group life, accidental death and travel
accident insurance plans and programs of the Corporation and its affiliated
companies, in each case comparable to those in effect at any time during the
90-day period immediately preceding the Effective Date which would be most
favorable to the Executive or, if more favorable to the Executive, as in effect
at any time thereafter with respect to other key executives.
(e) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the most favorable to the Executive of the
policies and procedures of the
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Corporation in effect at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect at any
time thereafter with respect to other key executives.
(f) FRINGE BENEFITS. During the Employment Period, the Executive shall
be entitled to fringe benefits, including a car allowance, in accordance with
the most favorable to the Executive of the policies of the Corporation in effect
at any time during the 90-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as in effect at any time thereafter with
respect to other key executives.
(g) OFFICE AND SUPPORT STAFF. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance, at
least equal to those provided to the Executive at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter with respect to other key
executives.
(h) VACATION. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the most favorable to the Executive
of the policies of the Corporation in effect at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter with respect to other key
executives.
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(i) RESTRICTED STOCK; STOCK OPTIONS. On the Effective Date, restricted
stock held by the Executive shall become immediately vested and non-forfeitable,
and all of the Executive's stock options shall become immediately exercisable.
6. TERMINATION OF EMPLOYMENT. (a) DISABILITY. During the Employment
Period, the Corporation may terminate the Executive's employment, after having
established the Executive's Disability (pursuant to the definition of
"Disability" set forth below), by giving to the Executive written notice of its
intention so to terminate the Executive's employment. In such a case, the
Executive's employment with the Corporation shall terminate effective on the
180th day after receipt of such notice (the "Disability Effective Date"),
provided that, within 180 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" means disability which, after the expiration of 26
weeks or more after its commencement, 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 to
acceptability not to be withheld unreasonably).
(b) CAUSE. During the Employment Period, the Corporation may terminate
the Executive's employment for "Cause." For purposes of this Agreement, "Cause"
means (i) an act or acts of dishonesty taken by the Executive and intended to
result in substantial personal enrichment of the Executive, (ii) repeated
violations by the Executive of the Executive's obligations under Section 4(b) of
this Agreement which are demonstrably willful and deliberate on the Executive's
part or (iii) the conviction of the Executive of a felony.
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(c) GOOD REASON. During the Employment Period, the Executive's
employment may be terminated by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" means
(i) (A) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting
relationships), authority, duties or responsibilities as
contemplated by Section 4 of this Agreement or (B) any other
action by the Corporation which results in a diminution in
such position, authority, duties or responsibilities, other
than an insubstantial and inadvertent action which is remedied
by the Corporation promptly after receipt of notice thereof
given by the Executive;
(ii) any failure by the Corporation to comply with any of the
provisions of Section 5 of this Agreement, other than an
insubstantial and inadvertent failure which is remedied by the
Corporation promptly after receipt of notice thereof given by
the Executive;
(iii) the Corporation's requiring the Executive to be based at
any office or location other than as described in Section
4(a)(ii) hereof, except for travel reasonably required in the
performance of the Executive's responsibilities;
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(iv) any purported termination by the Corporation of the
Executive's employment otherwise than as permitted by this
Agreement, it being understood that any such purported
termination shall not be effective for any purpose of this
Agreement; or
(v) any failure by the Corporation to comply with and satisfy
Section 13(c) of this Agreement.
For purposes of this Section 6(c), any good faith determination of
"Good Reason" made by the Executive shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the Corporation for Cause
under Section 6(b) or by the Executive for Good Reason under Section 6(c) shall
be communicated by Notice of Termination to the other party hereto given in
accordance with Section 14(b) of this Agreement. For purposes of this Agreement,
a "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated and
(iii) if the termination date is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than 15 days after
the giving of such notice).
(e) DATE OF TERMINATION. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be. If the Executive's employment is terminated by the Corporation
during the Employment Period other than for
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Cause or Disability, the Date of Termination shall be the date on which the
Executive receives written notice of such termination.
7. OBLIGATIONS OF THE CORPORATION UPON TERMINATION OF EMPLOYMENT. (a)
DEATH. If, during the Employment Period, the Executive's employment is
terminated by reason of the Executive's death, the Corporation shall not have
any further obligations to the Executive's legal representatives under this
Agreement, other than those obligations accrued hereunder at the date of the
Executive's death, and except as provided in this Section 7(a). The Executive's
family shall be entitled to receive benefits at least equal to the most
favorable benefits provided by the Corporation to surviving families of
executives of the Corporation under such plans, programs, and policies relating
to family death benefits, if any, as in effect at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the
Executive and/or the Executive's family, as in effect on the date of the
Executive's death with respect to other key executives and their families.
(b) DISABILITY. If, during the Employment Period, the Executive's
employment is terminated by reason of the Executive's Disability (as defined in
Section 6(a)), the Executive shall be entitled after the Disability Effective
Date to receive disability and other benefits at least equal to the most
favorable of those provided by the Corporation to disabled employees and/or
their families in accordance with such plans, programs and policies relating to
disability, if any, as in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the Executive
and/or the Executive's family, as in effect at any time thereafter with respect
to other key executives and their families.
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(c) CAUSE. If, during the Employment Period, the Executive's employment
shall be terminated for Cause (as defined in Section 6(b)), the Corporation
shall pay the Executive his full Base Salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given and shall have no
further obligations to the Executive under this Agreement.
(d) GOOD REASON; OTHER THAN FOR CAUSE OR BY REASON OF DEATH OR
DISABILITY. If, during the Employment Period, the Executive's employment is
terminated other than for Cause or by reason of Death or Disability, or the
employment of the Executive shall be terminated by the Executive for Good
Reason:
(i) the Corporation shall pay to the Executive in a lump sum
in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
(A) to the extent not theretofore paid, the
Executive's Base Salary through the Date of
Termination at the rate in effect on the Date of
Termination or, if higher, at the highest rate in
effect at any time within the 90-day period preceding
the Effective Date; and
(B) the product of (x) the Annual Bonus paid to the
Executive for the last Fiscal Year ending prior to
the Date of Termination and (y) a fraction the
numerator of which is the number of days in the
period extending from the
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beginning of the Fiscal Year in which the Date of
Termination occurs up to the Date of Termination and
the denominator of which is 365; and
(C) except as otherwise provided under the
Corporation's Supplemental Executive Investment Plan,
any undistributed amounts relating to compensation
previously deferred by the Executive; and
(D) the product of (x) the Executive's Base Salary at
the monthly rate in effect on the Date of Termination
or, if higher, at the highest rate in effect at any
time within the 90-day period preceding the Effective
Date and (y) the number of months in the period
extending from the Termination Date to the end of the
Employment Period (hereinafter the "Remainder of the
Employment Period"); and
(E) the product of (x) one-twelfth of the greater of
(1) the greatest annual bonus paid to the Executive
for any of the last five Fiscal Years ending prior to
the Date of Termination or (2) the highest midpoint
of the Executive's bonus range for any of such Fiscal
Years and (y) the number of months in the Remainder
of the Employment Period;
(ii) the Corporation shall continue benefits for the Remainder
of the Employment Period 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
and
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policies described in Sections 5(d) and 5(f) of this Agreement
if the Executive's employment had not been terminated,
including health insurance, life insurance and any other
Executive perk, if and as in effect at any time during the
90-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect at any time
thereafter with respect to other key executives and their
families; provided, however, that any amounts paid or benefits
provided under this Section shall not duplicate any similar
benefits earned by the Executive as of result of employment by
another employer;
(iii) the Executive shall be entitled to receive retirement
benefits under the change-of-control provisions of the
Corporation's Executive Retirement Plan; and
(iv) the Corporation shall provide for standard outplacement
services by any one qualified outplacement agency selected by
the Executive and reasonably satisfactory to the Corporation.
Anything in this Agreement to the contrary notwithstanding, immediately
prior to the Effective Date, the Corporation may transfer funds to the ▇▇▇▇▇▇ &
▇▇▇▇▇ Agreement & Plans Trust in an amount which it shall in good faith estimate
to be sufficient to make the payments that would be required under this Section
7(d) and under Section 11 if the Executive's employment were terminated under
Section 7(d) immediately following the Effective Date. If the Corporation
subsequently determines that the amount so transferred is inadequate, it may
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transfer additional funds to said Trust in order to provide sufficient funds to
make such payments.
In addition, at any time prior to the Effective Date, upon the request
of the Executive, the Corporation may offer to extend the exercise period of any
stock option previously granted to the Executive by the Corporation. If so
requested, the Corporation may offer the Executive the opportunity to extend
until the expiration date the exercise period of any or all of such stock
options in the event that the Executive's employment is terminated during the
Employment Period under the circumstances described in Section 7(d). If the
Corporation makes such an offer, it shall not be effective unless accepted by
the Executive.
8. NO DUTY TO MITIGATE. 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,
nor shall the amount of any payment hereunder be reduced, except as otherwise
specifically provided herein, by any compensation earned by the Executive as a
result of employment by another employer.
9. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program 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 stock option or other agreements with the Corporation or any of its
affiliated companies. Amounts which are vested benefits or which the Executive
is otherwise
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entitled to receive under any plan or program of the Corporation or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan or program. Anything herein to the contrary
notwithstanding, if the Executive becomes entitled to payments pursuant to
Section 7(d) hereof, such Executive agrees to waive payments under any severance
plan or program of the Corporation.
10. 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 circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Corporation may have against the Executive or others. The Corporation agrees
to pay, to the full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Corporation or others of the validity or enforceability
of, or liability under, any provision of this Agreement (including Section 11)
or any guarantee of performance thereof, plus in each case interest at the
applicable Federal rate provided for in Section 7872(f)(2) of the Internal
Revenue Code (the "Code").
11. TAX PAYMENT. (a) WITHHOLDINGS AND DEDUCTIONS. Any payment made
pursuant to Section 7(d) shall be paid, less standard withholdings and other
deductions authorized by Executive or required by law.
(b) GROSS-UP FOR CERTAIN TAXES. All determinations required to be made
under this Section 11 shall be made by KPMG LLP, or other comparable national
accounting firm selected
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in good faith by the Corporation (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Corporation and the Executive
within 15 (fifteen) business days of the Date of Termination or such earlier
time as is requested by the Corporation.
If it is determined by the Accounting Firm that any benefit received or
deemed received by the Executive from the Corporation pursuant to this Agreement
or otherwise (collectively, the "Payments") is or will become subject to any
excise tax under Section 4999 of the Code or any similar tax payable under any
United States federal, state, local or other law (such excise tax and all such
similar taxes collectively, "Excise Taxes"), then the Corporation shall,
immediately after such determination, pay the Executive an amount ("the Gross-up
Payment") such that the net amount retained by the Executive, after the
deduction of any Excise Taxes (including any applicable interest and penalties)
on the Payments, and any federal, state, and local income tax, and any Excise
Tax (including any applicable interest and penalties on all such taxes), upon
such Gross-up Payment, shall be equal to the amount of the Payments in the
absence of the imposition of such Excise Tax and the Gross-up Payment. For
purposes of determining the amount of the Gross-up Payment, the Executive shall
be deemed to pay income taxes at the highest marginal rates of the applicable
federal, state and local income taxation in the calendar year in which the
Gross-up Payment is to be made.
(c) DETERMINATION BY THE EXECUTIVE. If at any time following
determination of the Gross-up Payment by the Accounting Firm, the Executive
disputes the amount of the Gross-up Payment, the Executive may elect to demand
payment of the amount which the Executive, in accordance with an opinion of
counsel to the Executive ("Executive Counsel Opinion"),
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determines to be the Gross-up Payment. Any such demand by the Executive shall be
made by delivery to the Corporation of a written notice which specifies the
Gross-up Payment determined by the Executive and an Executive Counsel Opinion
regarding such Gross-up Payment (such written notice and opinion collectively,
the "Executive's Determination"). Within 14 days after delivery of the
Executive's Determination to the Corporation, the Corporation shall either (i)
pay the Executive the Gross-up Payment set forth in the Executive's
Determination (less the portion of such amount, if any, previously paid to the
Executive by the Corporation) or (ii) deliver to the Executive a certificate
specifying the Gross-up Payment determined by the Accounting Firm, together with
an opinion of the Corporation's counsel ("Corporation Counsel Opinion"), and pay
the Executive the Gross-up Payment specified in such certificate. If for any
reason the Corporation fails to comply with clause (ii) of the preceding
sentence, the Gross-up Payment specified in the Executive's Determination shall
be controlling for all purposes.
(d) OPINION OF COUNSEL. "Executive Counsel Opinion" means a legal
opinion of a nationally recognized executive compensation counsel that there is
a reasonable basis to support a conclusion that the Gross-up Payment determined
by the Executive has been calculated in accordance with this Section and
applicable law. "Corporation Counsel Opinion" means a legal opinion of a
nationally recognized executive compensation counsel that (i) there is a
reasonable basis to support a conclusion that the Gross-up Payment set forth by
the Accounting Firm has been calculated in accordance with this Section and
applicable law, and (ii) there is no reasonable basis for the calculation of the
Gross-up Payment determined by the Executive.
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(e) ADDITIONAL GROSS-UP AMOUNTS. If, despite the initial conclusion of
the Corporation and/or the Executive that certain Payments are neither subject
to Excise Taxes nor to be counted in determining whether other Payments are
subject to Excise Taxes (any such item, a "Non-Parachute Item"), it is later
determined (pursuant to the subsequently-enacted provisions of the Code, final
regulations or published rulings of the IRS, final judgment of a court of
competent jurisdiction or the Accounting Firm) that any of the Non-Parachute
Items are subject to Excise Taxes, or are to be counted in determining whether
any Payments are subject to Excise Taxes, with the result that the amount of
Excise Taxes payable by the Executive is greater than the amount determined by
the Corporation or the Executive pursuant to this Section, as applicable, then
the Corporation shall pay the Executive an additional Gross-up Payment in order
to compensate the Executive for (i) such additional Excise Taxes, any interest,
fines, penalties, expenses or other costs incurred by the Executive as a result
of having taken a position in accordance with a determination made pursuant to
Section 11(b, and (ii) any federal, state, and local income tax, and any Excise
Tax upon such additional Gross-up Payments, calculated in the manner described
in Section 11(b).
(f) AMOUNT INCREASED OR CONTESTED. The Executive shall notify the
Corporation in writing of any claim by the IRS or other taxing authority that,
if successful, would require the payment by the Corporation of a Gross-up
Payment. Such notice shall include the nature of such claim and the date on
which such claim is due to be paid. The Executive shall give such notice as soon
as practicable, but no later than 10 business days, after the Executive first
obtains actual knowledge of such claim; provided, however, that any failure to
give or delay in giving such notice shall affect the Corporation's obligations
under this Section only if and to the extent that
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such failure results in actual prejudice to the Corporation. The Executive shall
not pay such claim less than 30 days after the Executive gives such notice to
the Corporation (or, if sooner, the date on which payment of such claim is due).
If the Corporation notifies the Executive in writing before the expiration of
such period that it desires to contest such claim, the Executive shall:
(i) give the Corporation any information that it reasonably
requests relating to such claim,
(ii) take such action in connection with contesting such claim
as the Corporation reasonably requests in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Corporation,
(iii) cooperate with the Corporation in good faith to contest
such claim, and
(iv) permit the Corporation to participate in any proceedings
relating to such claim;
provided, however, that the Corporation shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax, including
related interest and penalties, imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing, the Corporation
shall control all
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proceedings in connection with such contest and, at its sole option, may pursue
or forego any and all administrative appeals, proceedings, hearings, and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a
refund or contest the claim in any permissible manner. The Executive agrees to
prosecute such contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate courts, as the
Corporation shall determine; provided, however, that if the Corporation directs
the Executive to pay such claim and ▇▇▇ for a refund, the Corporation shall
advance the amount of such payment to the Executive, on an interest-free basis
and shall indemnify the Executive, on an after-tax basis, for any Excise Tax or
income tax, including related interest or penalties, imposed with respect to
such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. The Corporation's control of the contest shall
be limited to issues with respect to which a Gross-up Payment would be payable.
The Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the IRS or other taxing authority.
(g) REFUNDS. If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to Section 11(f), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Corporation's complying with the requirements of Section 11(f))
promptly pay the Corporation the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Corporation pursuant to
Section 11(f), a
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determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Corporation does not notify the Executive in
writing of its intent to contest such determination before the expiration of 30
days after such determination, then such advance shall be forgiven and shall not
be required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-up Payment required to be paid. Any contest
of a denial of refund shall be controlled by Section 11(f).
12. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Corporation all secret or confidential
information, knowledge or data relating to the Corporation or any of its
affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the Corporation
or any of its affiliated companies and which shall not be public knowledge
(other than by acts by the Executive or his representatives in violation of this
Agreement). After termination of the Executive's employment with the
Corporation, the Executive shall not, without the prior written consent of the
Corporation, communicate or divulge any such information, knowledge or data to
anyone other than the Corporation and those designated by it. In no event shall
an asserted violation of the provisions of this Section 12 constitute a basis
for deferring or withholding any amounts otherwise payable to the Executive
under this Agreement.
13. SUCCESSORS. (a) This Agreement is personal to the Executive and
without the prior written consent of the Corporation shall not be assignable by
the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
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(b) This Agreement shall inure to the benefit of and be binding upon
the Corporation and its successors.
(c) The Corporation will require any Successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it if no such
succession had taken place. As used in this Agreement, "Corporation" shall mean
the Corporation as hereinbefore defined and any Successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
14. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
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IF TO THE EXECUTIVE:
name/address
IF TO THE CORPORATION:
▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President-General Counsel, or to the then-current
address of the Corporation's principal executive offices,
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.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Corporation may withhold from any amounts payable under this
Agreement such federal, state, or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) This Agreement contains the entire understanding between the
Corporation and the Executive with respect to the subject matter hereof and
supersedes and nullifies any previous change-of-control employment agreement
between the parties.
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(f) The Executive and the Corporation acknowledge that the employment
of the Executive by the Corporation is "at will," and, prior to the Effective
Date, may be terminated by either the Executive or the Corporation at any time.
Upon a termination of the Executive's employment prior to the Effective Date,
there shall be no further rights under this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set his or her hand and,
pursuant to the authorization from its Board of Directors, the Corporation has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
________________________________________
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By_____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President, Human Resources
and Administration
Attest:___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Secretary
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