Executive Change-in-Control Agreement
This Executive Change-in-Control
Agreement is made, entered into, and is effective this 9th day of April,
2008, by and between ▇▇▇▇▇▇
▇▇▇▇▇▇, Inc., a New York corporation, having its principal place of
business at ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the “Company”)
and ▇▇▇ ▇. ▇▇▇▇▇, having
an address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Executive”).
Whereas, the Executive is
currently employed by the Company; and
Whereas, the Executive
possesses considerable experience and knowledge of the business and affairs of
the Company concerning its policies, methods, personnel, and operations;
and
Whereas, the Company is
desirous of assuring, insofar as possible, that it will continue to have the
benefit of the Executive’s services and the Executive is desirous of having such
assurances; and
Whereas, the Company
recognizes that circumstances may arise in which a Change in Control (as defined
in Article 1 of this Agreement) occurs, thereby causing uncertainty of
employment without regard to the Executive’s competence or past contributions.
Such uncertainty may result in the loss of the valuable services of the
Executive to the detriment of the Company and its shareholders; and
Whereas, the Executive will be
in a better position to consider the Company’s best interests if the Executive
is afforded reasonable security, as provided in this Agreement, against altered
conditions of employment which could result from any Change in
Control;
Now, Therefore, in
consideration of the foregoing and of the mutual covenants and agreements of the
parties set forth in this Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
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1.
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Change
in Control.
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A “Change
in Control” shall be deemed to have occurred as of the first day any one or more
of the following conditions shall have been satisfied:
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(a)
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Any person (other than (i) the
Company or any subsidiary of the Company, (ii) a corporation or other
entity owned, directly or indirectly, by the shareholders of the Company
in substantially the same proportions as their ownership of the Company,
or (iii) an employee benefit plan (or related trust) sponsored or
maintained by the Company or any subsidiary of the Company), becomes the
beneficial owner, directly or indirectly, of securities of the Company,
representing thirty-five percent (35%) or more of the combined voting
power of the Company’s then outstanding securities; provided,
however, that no
crossing of such 35% threshold shall be a "Change in Control" if it is
caused (A) solely as a result of an acquisition by the Company of its
voting securities or (B) solely as a result of an acquisition of the
Company’s voting securities directly from the Company, in either case
until such time thereafter as such person acquires additional voting
securities other than directly from the Company and, after giving effect
to such transaction, such person owns 35% or more of the then outstanding
common stock or voting power of the
Company;
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(b)
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Individuals
who, as of the date hereof, constitute the Board of Directors of the
Company (the “Board”; such individuals being referred to as 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 Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Securities
Exchange Act of 1934 (the “’34 Act”) relating to the election of the
directors of the Company) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board;
or
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(c)
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A
merger, consolidation, reorganization or share exchange, or sale of all or
substantially all of the assets, of the Company, unless, immediately
following such transaction, all of the following shall apply: (A) all or
substantially all of the beneficial owners of the Company immediately
prior to such transaction will beneficially own in substantially the same
proportions, directly or indirectly, more than 50% of the combined voting
power of the then outstanding voting securities of the corporation or
other entity resulting from such transaction (including, without
limitation, a corporation or other entity which, as a result of such
transaction, owns the Company or all or substantially all of the Company's
assets, either directly or through one or more subsidiaries) (the
"Successor Entity"), (B) no person will be the beneficial owner, directly
or indirectly, of 35% or more of the combined voting power of the then
outstanding voting securities of the Successor Entity, and (C) at least a
majority of the members of the board of directors of the Successor Entity
will be Incumbent Directors.
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(d)
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All
terms used in this Section 1 shall be interpreted in a manner consistent
with the ’34 Act.
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2.
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Termination
of Employment Following a Change in
Control.
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(a)
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Triggering
Event. If, following a Change in Control, a Triggering
Event occurs, the Executive will be entitled to the compensation and
benefits described in Sections 3(a)-(c) below. For the purposes
of this Agreement, a “Triggering Event” means a termination of the
Executive’s employment with the Company at any time prior to the end of
the twelve (12) month period following the Change in Control (such period
of time being referred to as the “Employment Period”), unless (i) such
termination is by reason of the Executive’s Total Disability or death,
(ii) the Company terminates the Executive’s employment with the Company
for Cause, or (iii) the Executive terminates his employment with the
Company for other than Good Reason.
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(b)
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Cause. For
purposes of this Agreement, the termination of the Executive’s employment
with the Company shall be deemed to be for “Cause” only in the event
of:
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A
felony or crime of moral turpitude by the
Executive;
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An
act of fraud, embezzlement, misappropriation of assets, dishonesty or
disloyalty by the Executive;
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The
Executive’s failure to substantially perform his or her duties
as such duties exist at the time of a Change in Control (other than any
such failure resulting from the Executive’s incapacity due to physical or
mental illness), after a written demand for substantial performance is
delivered to the Executive by the Company, specifically identifying the
manner in which the Executive has not substantially performed his or her
duties, and the Executive does not cure such failure within thirty (30)
days of such demand;
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The
Executive’s material breach of this Agreement or any other agreement
between the Executive and the
Company;
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The
Executive’s deliberate and persistent disregard of the Company’s polices
or procedures, after a written demand for compliance with the Company’s
policies or procedures is delivered to the Executive by the Company,
specifically identifying the manner in which the Executive has not
complied with the Company’s policies or procedures, and the Executive does
not cure such noncompliance within thirty (30) days of such
demand;
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Any
act by the Executive which brings material adverse publicity to the
Company; or
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An
act, or failure to act, which constitutes gross negligence or a material
breach of any fiduciary duty owed by the Executive to the
Company.
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Any
determination of Cause under this Agreement shall be made by resolution duly
adopted by the affirmative vote of not less than a majority of the entire
membership of the Board at a regular meeting of the Board or a special meeting
called and held for that purpose. The Executive shall be provided
with reasonable notice of such meeting and shall be given the opportunity to be
heard before such vote is taken by the Board. The Executive’s
employment shall not be terminated for Cause if the Board determines that the
Executive’s act or failure to act was done in good faith and with reasonable
belief that the act or failure to act was in the best interest of the
Company.
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(c)
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Good
Reason. For purposes of this Agreement, the Executive’s
termination of his employment with the Company shall be deemed to be for
“Good Reason” if for any of the following
reasons:
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A
material diminution in the Executive’s authorities, duties, and/or
responsibilities;
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A
material diminution in the budget over which the Executive retains
authority, unless the diminution is a result of a company-wide diminution
in total budget;
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A
material diminution in the Executive’s base salary, or unless the
diminution is a result of a Company-wide diminution in the annual cash
bonuses, target incentive awards, and/or benefits of all similarly
situated employees as the Executive, a material diminution in the
Executive’s annual cash bonus, target incentive award, and/or benefits,
including health, retirement and
fringe;
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The
failure by the Company to pay the Executive any amount of his salary,
bonus or other compensation when due and
payable;
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A
change in the Executive’s principal place of employment; such that the
Executive’s commuting distance as of the date of this Agreement, or as of
the Termination Date, whichever is longer, increases by more than fifty
miles;
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The
failure of a successor to the Company to explicitly assume and agree to be
bound by this Agreement, in accordance with the terms of Section 5(a) of
this Agreement; or
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A
material breach by the Company of any the terms and conditions of this
Agreement.
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(d)
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Total
Disability. For the purposes of this Agreement, the term
“Total Disability” means any physical or mental incapacity as a result of
which the Executive is unable to perform substantially all of the
Executive’s essential duties for an aggregate of four (4) months, whether
or not consecutive, during any calendar year, and which cannot be
reasonably accommodated by the Company without undue
hardship. An Executive cannot be terminated for Total
Disability unless the Company has delivered a written demand for
substantial performance to the Executive, specifically identifying the
manner in which the Executive has not substantially performed his or her
duties, and the Executive does not cure such failure within thirty (30)
days of such demand.
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(e)
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Notice of
Termination. Any termination by the Company or by the
Executive under this Agreement shall be communicated by a Notice of
Termination to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice in writing which
shall indicate (i) the specific termination provision in this Agreement
relied upon to terminate the Executive’s employment, (ii) the facts and
circumstances, in reasonable detail, claimed to provide a basis for
termination of employment under the provision so indicated, and (iii) the
date that the Executive separates from service as defined under Section
409A of the Internal Revenue Code (the “Code”) from the Company or any
affiliate.
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(f)
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Termination
Date. As used in this Agreement, “Termination Date”
means (i) if the Executive’s employment is terminated because of death,
the date of the Executive’s death, (ii) if the Executive’s employment
terminates for any other reason, the date specified in the Notice of
Termination, which will be the date the Executive “separates from service”
as defined under Section 409A of the Code from the Company or any
affiliate. If the Executive terminates his or her employment
for Good Reason, then the date specified by the Executive in the Notice of
Termination (i.e., the date the Executive ceases to provide services to
the Company or affiliates) shall be at least thirty (30) days after the
date of the notice.
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3.
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Benefits
Payable Upon Termination.
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Triggering
Event. Subject to Sections
4(a) and 9, if, following a Change in Control, a Triggering Event occurs, the
Company will provide the compensation and benefits set forth in (a), (b), and
(c) to the Executive:
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(a)
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Lump Sum
Payment. The Company shall pay the Executive a lump sum
cash amount equal to the sum of:
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(i) two
times the Executive’s base salary at the time of the occurrence of the Change in
Control;
(ii) the
cash equivalent of any unused vacation that Executive has accrued or is
otherwise currently entitled to, prorated on a per diem basis in accordance with
the Executive’s base salary at the time of the occurrence of the
Change in Control;
(iii) two
times the Executive’s annual bonus, if any, paid to the Executive with respect
to the Company’s most recently completed fiscal year preceding the fiscal year
in which the Termination Date occurs; provided, however, that if no annual bonus
was paid with respect to the most recently completed fiscal year, then the
Executive shall receive two times the Executive’s most recent annual bonus, if
any, paid with respect to any of the Company’s three fiscal years immediately
preceding the Termination Date;
(iv) the
amount of any annual bonus (or portion thereof) for the calendar year in which
the Termination Date occurs, prorated on a per diem basis from the beginning of
the calendar year to the Termination Date; and
(v) all
other amounts payable to the Executive as of the Termination
Date (other than retirement benefits and other deferred compensation,
if any, which shall be paid pursuant to applicable terms, conditions and
provisions), to the extent unpaid as of the Termination Date.
Under
Section 9(b) hereof, the portion of the lump sum payment under this Section 3(a)
that is not exempt from Section 409A shall be paid on the first of the seventh
month after the Executive’s Termination Date (or, if earlier, on the date the
Executive dies after meeting the other conditions for payment). Any
portion exempt from Section 409A shall be paid to Executive no earlier than the
Termination Date, on or before the 30th day
after the Termination Date (or, if later, the end of the seven-day period during
which the Executive may revoke his consent to providing a Release, in accordance
with Section 4(a) hereof); provided, however, that any
amount payable in accordance with Section 3(a)(iv) hereof will be paid during
the 2 ½ month period between the beginning of the fiscal year following the
fiscal year in which the Termination Date occurs (i.e., between the following
January 1 and March 15 for fiscal years ending December 31).
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(b)
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Medical and Dental
Benefits. The Company, at its sole cost and expense,
will continue for the Executive and the Executive’s eligible dependents,
all Company-sponsored or provided medical, dental, vision, and
prescription drug, plans, programs and arrangements that provide for
medical or dental benefits, whether group or individual, in which the
Executive was entitled to participate at any time during the twelve
(12)-month period prior to the Termination Date, until the later to occur
of (i) the last day of the Employment Period or (ii) the six (6) – month
anniversary of the Termination Date; provided, however, that
payment of benefits shall terminate upon the Executive’s death (other than
benefits payable to the Executive’s beneficiaries). In the
event that the Executive’s participation in any such plan, program or
arrangement of the Company is prohibited, the Company will arrange to
provide the Executive with benefits substantially similar to those which
the Executive would have been entitled to receive under such plan, program
or arrangement, for such period. The Company shall make the
payments necessary to continue such benefits on the Company’s customary
payment date for such payments (whether to the Executive or to a third
party, as applicable).
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(c)
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Company
Automobile. The Company will continue to provide the
Executive with the use of his or her Company automobile, if any, under the
terms available to the Executive on the Termination Date, until the
earlier to occur of (i) the expiration of the applicable automobile lease
or (ii) the last day of the Employment Period. The Company will
make such payments at the times as are necessary to continue the benefit
and in accordance with the terms of the applicable
lease.
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To the
extent the medical benefits or automobile lease payments described in
subsections (b) and (c) above are not exempt from Section 409A of the Code,
during the 6-month period described in Section 9(b), the Executive will pay such
expenses and be reimbursed at the end of the 6-month period in accordance with
Section 9(b).
Total
Disability or Death. If, following a Change in
Control, the Executive’s employment with the Company terminates as a result of
his Total Disability or death, the Company will provide to the Executive or the
Executive’s estate, as the case may be,
(i) the
Executive’s base salary at the time of the Executive’s Total Disability or death
that is unpaid at his Termination Date, through the Termination
Date;
(ii) the
Executive’s annual bonus for the fiscal year prior to which the Executive
suffered a Total Disability or died, prorated on a per diem basis from the
beginning of the fiscal year in which the Terminate Date occurs through the
Termination Date; and
(iii) any
other benefits to which the Executive is/was entitled but have yet to be
paid.
Payments
of amounts due in connection with a termination of the Executive’s employment
with the Company s a result of the Executive’s Total Disability or death will be
made at the same time as specified for lump sum payments under Section 3(a)
above, except that the annual bonus with respect to the fiscal year of
termination will be paid during the 2 ½ month period between the beginning of
the fiscal year following the fiscal year in which the Termination Date occurs
and the 15th day of
the third month following the fiscal year in which the Termination Date occurs
(i.e., between the following January 1 and March 15 for fiscal years ending
December 31).
In
addition, all Company-sponsored or provided medical, dental, vision, and
prescription drug, plans, programs and arrangements, whether group or
individual, in which the Executive and the Executive’s eligible dependants
participated in as of the Termination Date shall be continued, at the Company’s
sole expense and cost, for a period of six (6) months from the Termination
Date. In the event that the Executive’s participation in any such
plan, program or arrangement of the Company is prohibited, the Company will
arrange to provide the Executive with benefits substantially similar to those
which the Executive would have been entitled to receive under such plan, program
or arrangement, for such period.. To the extent the medical payments described
herein are not exempt from Section 409A of the Code, during the 6-month period
described in Section 9(b), the Executive will pay such expenses and be
reimbursed at the end of the 6-month period in accordance with Section
9(b). The Company shall make the payments necessary to continue such
benefits on the Company’s customary payment date for such payments (whether to
the Executive or to a third party, as applicable).
Company’s
Termination of Executive’s Employment with the Company for Cause or Executive’s
Termination of Employment with the Company for other than for Good
Reason. If,
following a Change of Control, the Company terminates the Executive’s employment
with the Company for Cause or the Executive terminates his employment with the
Company other than for Good Reason, the Company’s only obligation to the
Executive will be to pay the Executive’s base salary (as of the date of such
termination) that is unpaid on the Termination Date, through the Termination
Date.
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4.
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Covenants
of Executive.
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(a)
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Release of
Claims. The Company’s payment and other obligations set
forth in Section 3(a)-(c) of the Agreement shall be subject to the
Executive’s executing and delivering to the Company a written release of
any and all claims against the Company and all related parties with
respect to all matters arising out of the Executive’s employment with the
Company or the termination thereof (the “Release”), substantially in the
form attached hereto. Such release must be executed no later
than thirty (30) days after the Termination Date. The Company
will not be obligated to perform its obligations under Section 3(a)-(c)
until the Executive submits the executed Release, and then only if the
Executive does not revoke his consent to the Release for a period of seven
(7) days following the Executive’s execution of the
Release.
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(b)
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Non-Solicitation of Company
Employees. For a period of two (2) years after the
Termination Date, the Executive will not solicit (i) any employee of the
Company to discontinue that person’s employment relationship with the
Company, (ii) any independent contractor to the Company to terminate that
person’s contractual relationship with the Company, or (iii) any customer
of the Company to terminate its business relationship with the
Company.
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(c)
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Confidentiality. The
Executive agrees to maintain for the benefit of the Company all secret or
confidential information, knowledge or data (“Confidential Information”)
relating to the Company and its businesses, disclosed to the Executive or
known, learned, created or observed by the Executive as a consequence of
or through employment by the Company, which information is not generally
known in the relevant trade or industry, about the Company's business
activities, services and processes, including, but not limited to,
information concerning the Company's contracts, marketing strategies,
management policies, data bases, government relations, regulatory
compliance, manuals, publicity, research, finances, accounting, trade
secrets, business plans, client or supplier lists and records, potential
client or supplier lists, and client and supplier billing. The
Executive acknowledges that the Confidential Information is confidential
to and a valuable asset of the Company and is proprietary to and includes
trade secrets of the Company, and is an integral part of the goodwill of
the Company.
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Notwithstanding
anything to the contrary contained in this Agreement, the restrictions on the
Executive’s disclosure and use of the Confidential Information shall not apply
to: (i) information, processes or techniques which are or become generally
known, other than through disclosure (whether deliberate or inadvertent) by the
Executive; (ii) disclosure of Confidential Information in judicial or
administrative proceedings to the extent the Executive is legally compelled to
disclose such information, provided that the Executive shall have used his or
her best efforts and shall have afforded the Company the opportunity to obtain
an appropriate protective order or other assurance reasonably satisfactory to
the Company of confidential treatment for the information required to be so
disclosed; or (iii) information that was or becomes available to the Executive
on a non-confidential basis from a third party that is not, to the Executive’s
knowledge after due inquiry, either bound by a confidentiality agreement with
the Company or otherwise prohibited from transferring the information to the
Executive.
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(d)
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Construction. If
one or more of the provisions in Section 4 of this Agreement is for any
reason held to be excessively broad as to scope, activity, subject or
otherwise, so as to be unenforceable by law, such provision or provisions
shall be construed by the appropriate judicial body by limiting or
reducing them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then
appear.
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(e)
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Injunctive
Relief. In addition to any other remedies that may be
available at law, the Executive understands that any breach of the terms
of Section 4 of this Agreement will result in irreparable injury to the
Company, such as to entitle the Company to equitable relief, including,
but not limited to, injunctive relief or the specific enforcement of this
Agreement, as is appropriate.
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5.
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Successors
and Assigns.
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Except as
otherwise provided in this Agreement, this Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
representatives, successors and assigns.
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(a)
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Company
Successor. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the
Company, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent as the Company would be required to
perform it if no such succession had taken place. Failure of
the Company to obtain such agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the
same terms as the Executive would be entitled to hereunder if the
Executive had given notice of termination for Good Reason as of the day
immediately before such succession became effective and had specified that
day in the notice of termination. As used in this Agreement,
the “Company” shall mean the Company as defined in the first sentence of
this Agreement and any successor to all or substantially all its business
or assets or which otherwise becomes bound by all the terms and provisions
of this Agreement, whether by the terms hereof, by operation of law or
otherwise.
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(b)
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Executive’s
Successor. This Agreement shall inure to the benefit of
and be enforceable by the Executive and the Executive’s personal or legal
representatives and successors in interest under this
Agreement.
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6.
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Notice.
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Any
notice, demand or other communication required or permitted under this Agreement
shall be effective only if it is in writing and delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, or
reputable overnight courier service, addressed to the respective addresses set
forth on the first page of this Agreement, provided that all notices to the
Company shall be directed to Chairman of the Compensation Committee, or to such
other address as either party may designate by notice to the other and shall be
deemed to have been given as of the date so personally delivered or
mailed.
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7.
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Miscellaneous.
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(a)
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No
Waiver. No term or condition of this Agreement may
be waived in whole or in part unless by the party against whom enforcement
of the modification or waiver is sought agrees in writing to such
modification or waiver. The failure of a party to insist upon
strict adherence to any term of this Agreement on any occasion shall not
be considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
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(b)
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Section
Headings. Section headings are only for
convenience of reference and do not affect the meaning of any provision of
this Agreement.
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(c)
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Severability. The
invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement.
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8.
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Employment
Status.
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This
Agreement is not, and nothing herein shall be deemed to create, an employment
contract between the Executive and the Company or change the Executive’s
employment-at-will status. The Executive acknowledges that the rights of the
Company remain wholly intact to change or reduce at any time and from time to
time the Executive’s compensation, title, responsibilities, location, and all
other aspects of the employment relationship, or to discharge the Executive (or
for the Executive voluntarily to resign) prior to a Change in
Control.
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9.
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Section 409A
Compliance.
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(a)
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Intent to comply;
interpretation. Payments under this Agreement are
intended to comply with Section 409A of the Code and this Agreement shall
be interpreted to comply with Section
409A.
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(b)
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Six-month delay for certain
“specified employees.” Because Executive is a “specified
employee” as defined under Section 409A of the Code, Section
409A(a)(2)(B)(i) of the Code requires a 6-month delay for any payments
that are not exempt from Section 409A and that are payable upon
termination of employment. Therefore, any such payments shall
be made no earlier than the first day of the seventh month following the
date of Executive’s separation from service or, if earlier, the date the
Executive dies after his separation from
service.
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10.
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Tax
Matters.
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(a)
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Withholdings. The
Company may withhold from any benefits payable under this Agreement all
federal, state, city or other taxes as shall be required pursuant to any
law or governmental regulation or
ruling.
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(b)
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Section 280G (golden
parachutes). The Company, or a public
accounting firm or other entity chosen by the Company, shall determine if
any payments made pursuant to this Agreement, any supplement to this
Agreement, or any other payment received or deemed to be received by
Executive from the Company or any of its subsidiaries and affiliates, or
from any pension, welfare or other compensation plan sponsored by the
Company or its affiliates, is or will become subject to any excise tax
under Section 4999 of the Code, or any similar tax payable under any
federal or state, local or other law (“Excise Taxes”). If it is determined
that any payment is or will become subject to any Excise Taxes, then the
Company or its designate shall determine if the payment of the Excise
Taxes, in addition to any federal, state, local or other income, excise or
other taxes (“Other Taxes”) payable by the Executive with respect to the
payments to be received, will cause the Executive to pay an amount of
Excise and Other Taxes such that the net payment the Executive will
receive after payment of all Excise and Other Taxes on such payment is
less than what he would receive if the payment he would receive was
reduced to the maximum amount payable without imposition of any
Excise Taxes (“Economic Detriment”). If it is determined that
the Executive will incur an Economic Detriment as the result of the
receipt of payments under this Agreement, the payment to the
Executive under this Agreement shall be reduced to the maximum possible
payment that can be paid to the Executive without his incurring any Excise
Taxes. If any payments are reduced under this Section 10(b),
they shall be payments that would cause the Executive to incur an Economic
Detriment as described above and shall come from
first, any lump sum payments due to the Executive other than the annual
bonus payable for the fiscal year of termination under Section 3(a)(iv) or
3(ii) in the case of Total Disability or death, next, from the bonus
payable for the fiscal year of termination under Section 3(a)(iv),
followed by any automobile reimbursement and then by any medical payments
due to the Executive.
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11.
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Non-assignability.
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This
Agreement is personal in nature and neither of the parties hereto shall, without
the consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder, except as provided in Article 5
hereof. Without limiting the foregoing, the Executive’s right to
receive payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer by
the Executive’s will or by the laws of intestacy, and in the event of any
attempted assignment or transfer contrary to this Article 10, the Company shall
have no liability to pay any amount so attempted to be assigned or
transferred.
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12.
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Mediation/Arbitration.
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With the
exception of the covenants of the Executive set forth in Section 4 of this
Agreement, the parties shall endeavor to resolve any dispute arising out of, or
relating to, this Agreement by mediation under the International Institute for
Conflict Prevention and Resolution (“CPR”) Mediation Procedure for Business
Disputes. Unless the parties agree otherwise, the mediator will be selected from
the CPR Panel of Neutrals with notification to CPR. Any controversy or claim
arising out of or relating to this contract or the breach, termination or
validity thereof, which remains unresolved forty-five (45) days after
appointment of a mediator, shall be settled by arbitration by a sole arbitrator
in accordance with the CPR Non-administered Arbitration Rules, and judgment upon
the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof.
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13.
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Governing
Law.
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This
Agreement shall be governed by applicable federal law and the internal law of
the State of New Jersey without reference to its choice of law rules or to any
other rule of any jurisdiction that would cause the application of rules other
than the jurisdiction of the State of New Jersey.
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14.
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Entire
Agreement.
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This
Agreement constitutes the entire understanding of the parties relating to the
subject matter hereof and supersedes all prior agreements, understandings and
representations, whether oral or written, relating to the subject matter
hereof.
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15.
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term;
Termination of agreement.
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Subject
to the terms of the next sentence, the term of this Agreement shall commence on
the date first set forth above and shall end on April 8, 2011; provided, however, that the
Agreement shall continue in effect for successive periods of one year thereafter
unless either the Company or the Executive gives written notice of intent to
terminate the Agreement at least six (6) months prior to the expiration of the
then-current term of the Agreement. This Agreement shall automatically
terminate if, before a Change in Control occurs, either the Company terminates
the Executive's employment or the Executive terminates his employment with the
Company, in either case for any reason. For purposes of this Agreement, a
termination of the Executive's employment shall be deemed to have occurred when
the Executive ceases active employment with the Company, even if the Executive
remains on the Company’s payroll as an inactive employee. The termination
of this Agreement will not affect the obligation of the Company to make payments
or provide benefits to which the Executive became entitled before such
termination.
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16.
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Counterparts.
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This
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, and such counterparts will together
constitute but one Agreement.
In Witness Whereof, the
Company and the Executive have executed and delivered this Agreement as of the
date first above written.
▇▇▇▇▇▇
▇▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇.
Kracklauaer
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Title: Sr.
Vice President,
General
Counsel,
Secretary
Executive
/s/ ▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇