EMPLOYMENT AGREEMENT
AGREEMENT made this 2nd day of January, 1990,
between ▇▇▇▇▇▇▇ Corporation, a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive").
The Board of Directors of the Company (the "Board")
recognizes that the Executive's contribution to the future
growth and success of the Company is expected to be
substantial. The Board desires to provide for the continued
employment of the Executive with the Company which the
board has determined will reinforce and encourage the
continued attention and dedication of the Executive to the
Company as a member of the Company's management, in the
best interest of the Company and its shareholders. The
Executive is willing to commit himself to serve the Company,
on the terms and conditions herein provided.
In order to effect the foregoing, the Company and the
Executive wish to enter into an employment agreement on the
terms and conditions set forth below. Accordingly, in
consideration of the premises and the respective covenants and
agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ
the Executive, and the Executive hereby agrees to serve the
Company, on the terms and conditions set forth herein.
2. Term. The employment of the Executive by the
Company as provided in Section 1 will commence no later
than February 15 (The "Commencement Date") and will
continue in effect, unless terminated as otherwise herein
provided, until either party gives notice to the other that it does
not wish to continue the Executive's employment hereunder.
A notice given on or before the third anniversary of the
Commencement Date will terminate the Executive's
employment on the last day of the 36th month following the
date of delivery of the notice, and a notice given after the third
anniversary of the Commencement Date will terminate the
Executive's employment on the last day of the 24th month
following the date of the notice. In no event, however, shall
the Term of the Executive's employment hereunder extend
beyond the end of the month in which the Executive's
sixty-fifth (65th) birthday occurs.
3. Position and Duties. The Executive shall serve as Chief
Executive Officer and President of the Company with the
responsibility and authority to manage and supervise the
Company's operations in the ordinary course of its business
and shall have such responsibilities, duties and authority as are
generally associated with each such position (or any position
to which he may be promoted after the date hereof) and as
may from time to time be assigned to the Executive by the
Board that are consistent with such responsibilities, duties and
authority. The Executive shall devote substantially all of his
working time and efforts to the business and affairs of the
Company. The Company shall nominate the Executive as a
director of the Company for election at the earliest practical
date consistent with the Company's By-laws following the
Commencement Date.
4. Compensation and Related Matters.
(a) Salary. During the period of the Executive's
employment hereunder, the Company shall pay to the
Executive an annual base salary at a rate not less than
$675,000 or such higher rate as may from time to time be
determined by the Board, such salary to be paid in
substantially equal installments in accordance with the normal
payroll practices of the Company. The Executive's salary will
be reviewed at least annually.
(b) (i) Sign-On Bonus. The Company will pay the
Executive a sign-on bonus of $250,000, payable in a single
sum within 30 days following the Commencement Date.
(ii) Annual Bonus. The Company will pay the
Executive a guaranteed bonus of $325,000 (the "Guaranteed
Bonus") within 30 days following December 31, 1990 (or the
end of the Company's fiscal year if such fiscal year is other
than calendar year) and, thereafter, an annual bonus (the
"Annual Bonus") within 60 days following each subsequent
December 31 (or last day of the fiscal year, if other than
December 31) in an amount not less than 60% of the
Executive's annual base salary then in effect provided the
Company achieves its targeted performance objectives for
such year based upon that year's operating plan (as approved
by the Executive Committee of the Company's Board of
Directors), it being understood that if the Company exceeds
such objectives, the Company will pay the Executive an
additional bonus which shall be reasonable in relation to such
corporate performance. The Executive shall be entitled to a
pro-rata portion of the Annual Bonus and additional bonus for
any period less than a full calendar year (or fiscal year, if other
than a calendar year) for which he is entitled to his salary.
(c) Stock Options. On the Commencement Date, the
Company will grant the Executive 500,000 stock options to
purchase shares of common stock of the Company ("Company
Stock") at an exercise price equal to 85% of the average of the
high and low price of the Company's Stock on the New York
Stock Exchange during the day prior to the date of this
Agreement during which such stock trades (the "Stock
Options"). The Stock Options will become transferable by the
Executive and exercisable in the following amounts on the
following dates:
166,667 Upon the Commencement Date
166,667 Upon the 2nd Anniversary of the
Commencement Date
166,666 Upon the 3rd Anniversary of the
Commencement Date.
In the event the Executive terminates his
employment without Good Reason prior to the third
anniversary of the Commencement Date, all Stock Options not
theretofore transferrable and exercisable will lapse and be
forfeited. In the event the Executive's employment is
terminated for any other reason prior to the third anniversary
of the Commencement Date all Stock Options not theretofore
transferable and exercisable will thereupon become
transferable and exercisable. Except as otherwise provided
herein or in Section 9 each Stock Option will expire 10 years
after it is granted.
(d) Incentive Stock. On the Commencement Date, the
Company will grant the Executive 100,000 shares of Company
Stock (the "Incentive Stock"), of which 33,334 will be
nonforfeitable on the Commencement Date, and, 33,333 of the
remaining 66,666 shares will become non-forfeitable on the
second anniversary of the Commencement Date, and the last
33,333 shares will become non-forfeitable on the third
anniversary of the Commencement Date. In the event the
Executive terminates his employment hereunder without Good
Reason (as defined in Section 6(d)), all Incentive Stock not
theretofore non-forfeitable will be forfeited by the Executive
and returned to the Company; and in the event the Executive's
employment is terminated for any other reason prior to the
third anniversary of the Commencement Date all Incentive
Stock theretofore subject to forfeiture will thereupon become
non-forfeitable and free of any limitation or restriction under
this Agreement. Unless and until a share of Incentive Stock is
forfeited hereunder, the Executive shall be entitled to all
dividends thereon and shall have the right to vote such share at
any meeting of the shareholders of the Company.
(e) "Gross-Up" Payment. Not less than 10 days prior to
the due date of the Executive's federal income tax return for
every taxable year of the Executive in which his income tax
liability is affected by the receipt of the Stock Options and/or
the Incentive Stock, and/or by the lapse of restrictions on the
Stock Options and/or the Incentive Stock, the Company will
pay the Executive an amount (the "Gross-Up Payment") which
will include all federal and state income taxes incurred by the
Executive as a result of the receipt by him of, or the lapse of
restriction on: (i) the Stock Options or (ii) the grant of
Incentive Stock under Section 4(d) hereof or (iii) the Gross-
Up Payment under this sub-paragraph, so that the Executive's
entire federal and state income tax liabilities attributable to the
receipt of the grant of the Stock Options, the receipt of the
Incentive Stock, or the lapse of restrictions on the Stock
Options or the Incentive Stock, and this Gross-Up Payment,
will be included in the Gross-Up Payment. For purposes of
determining the Gross-Up Payment, the Executive will be
deemed to pay federal income tax for his taxable year in which
the Stock Options and Incentive Stock are granted and the
taxable years in which the restrictions on the Stock Options
lapse or the Incentive Stock becomes non-forfeitable and his
taxable year in which the Gross-Up Payment is made, at the
highest marginal rate of federal income tax and the highest
marginal rate of state income tax in such year(s) net of the
maximum reduction of federal income tax which could be
realized by deduction of such state and local taxes paid in such
year(s). The Executive will timely furnish the Company with
a written statement prepared by the Executive's certified public
accountant setting forth the amount of the required Gross-Up
Payment and the due date or dates of such tax liability. The
parties agree that they will cooperate in devising and
implementing a viable and reasonable alternative to all or part
of the Gross-Up Payment, provided such alternative provides
the same economic benefit to the Executive that the Gross-Up
Payment hereinabove provides to him and is acceptable to the
Executive; the Executive agrees he will not unreasonably
withhold his acceptance of an alternative.
(f) Expenses. During the term of the Executive's
employment hereunder, the Executive shall be entitled to
receive prompt reimbursement for all reasonable and
customary expenses incurred by the Executive in performing
services hereunder, including (i) all expenses of travel and
living expenses while away from home on business or at the
request of and in the service of the Company and (ii) an
automobile, plus all expenses of maintaining and operating the
automobile, provided that all such expenses are accounted for
in accordance with the policies and procedures established by
the Company.
(g) Other Benefits. The Company shall maintain in full
force and effect, and the Executive shall be entitled to
participate in, all of the fringe benefit plans and arrangements
in effect on the date hereof in which executives of the
Company participate or plans or arrangements providing the
Executive with at least equivalent benefits thereunder
(including, without limitation, each group life insurance and
accident plan, medical and dental insurance plans, and
disability plan); provided, however, that, changes in such
plans or arrangements may be made, including termination of
such plans or arrangements if it occurs pursuant to a program
applicable to all executives of the Company and does not
result in a proportionately greater reduction in the rights of or
benefits to the Executive as compared with any other
executive of the Company. Notwithstanding any other
provision of this sub-paragraph, during the Term, the
Company will provide the Executive with term life insurance
(which may include any group life insurance arrangement
provided by the Company to its other employees), covering
the Executive's life in a face amount each year equal to six
times the Executive's base salary for such year through age 55,
at which time such insurance coverage may be decreased by
the Company to four times the Executive's base salary and
thereafter decreasing by .2% upon each birthday of the
Executive thereafter. The Executive agrees to cooperate with
the Company in obtaining such insurance, including
submitting to a physical examination if required to do so by
the insurance carrier. The beneficiary of this insurance will be
designated by the Executive and if not so designated, the
beneficiary will be his estate. Nothing paid to the Executive
under any fringe plan or arrangement presently in effect or
made available in the future shall be deemed to be in lieu of
the salary payable to the Executive pursuant to paragraph (a)
of this Section. Any payments or benefits payable to the
Executive hereunder in respect of any calendar year during
which the Executive is employed by the Company for less
than the entire such year shall, unless otherwise provided in
the applicable plan or arrangement be pro-rated in accordance
with the number of days in such calendar year during which he
is so employed.
(h) Annual Physical Examination. During the Term,
the Company shall reimburse the Executive for the reasonable
expenses incurred by the Executive in undergoing an annual
physical examination by a licensed physician.
(i) Club-Membership. During the Term, the Company
shall reimburse the Executive for dues and special assessments
incurred by the Executive in connection with his membership
in the Hillendale Country Club, Baltimore County, Maryland
and the Center Club, Baltimore City, Maryland.
(j) Tax and Financial Planning. During the Term, the
Company shall reimburse the Executive for the reasonable
expenses incurred by the Executive in connection with
obtaining professional tax and financial planning advice.
(k) Second Stock. Upon the earlier to occur of:
(i) A person or business organization, or affiliated
group of persons or business organizations who, or which, do
not now own or control 20% or more of the voting stock of the
Company, acquire ownership or control of 20% or more of the
voting stock of the Company, or its successor, and Equity
Group Holdings and its affiliates and its or their successors
then own or control less voting stock of the Company or its
successor than such person, business organization, or affiliated
group; or
(ii) the Executive's 55th birthday,
the Company will grant the Executive 100,000 shares of
Common Stock (the "Second Stock"); provided, however that
if the employment of the Executive is terminated by the
Company or by the Executive for any reason prior to the
occurrence of either of the events described in paragraphs (i)
and (ii) of this Section 4(k), the Executive shall forfeit the
right to receive such grant of 100,000 shares of Company
Stock, unless on or after his 53rd birthday and before his 55th
birthday: (x) the Executive terminates his employment for
Good Reason (as defined in Section 6(d)), or (y) his
employment is involuntarily terminated by the Company for
reasons other than Cause (under subsection 6(c)), death or
Disability (under subsection 6(b)) in which event the
Executive will receive such grant of shares on the first to occur
of the events described in said paragraphs (i) and (ii) above.
5. Offices. Subject to Section 3, the Executive agrees to
serve without additional compensation, if elected or appointed
thereto, as a director of the Company and any of its
subsidiaries and in one or more executive offices of any of the
Company's subsidiaries, provided that the Executive is
indemnified for serving in any and all such capacities on a
basis no less favorable than is currently provided by the
Company to any other director of the Company or any of its
subsidiaries.
6. Termination. The Executive's employment hereunder
may be terminated without any breach of this Agreement only
under the following circumstances:
(a) Death. The Executive's employment hereunder
shall terminate upon his death.
(b) Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive
shall have been absent from his duties hereunder on a full-time
basis for the entire period of six consecutive months, and
within thirty (30) days after written notice of termination is
given (which may occur before or after the end of such six
month period) shall not have returned to the performance of
his duties hereunder on a full-time basis, the Company may
terminate the Executive's employment hereunder.
(c) Cause. The Company may terminate the
Executive's employment hereunder for Cause. For purposes of
this Agreement, the Company shall have "Cause" to terminate
the Executive's employment hereunder upon (i) the willful and
continued failure by the Executive to substantially perform his
duties hereunder (other than any such failure resulting from
the Executive's incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance of a
Notice of Termination, as defined in Section 6(e), by the
Executive for Good Reason, as defined in Section 6(d)), after
demand for substantial performance is delivered by the
Company that specifically identifies the manner in which the
Company believes the Executive has not substantially
performed his duties, which is not cured within 10 days after
notice of such failure has been given to the Executive by the
Company, or (ii) the willful engaging by the Executive in
misconduct which is materially injurious to the Company,
monetarily or otherwise (including, but not limited to, conduct
that constitutes competitive activity pursuant to Section 9
hereof). For purposes of this paragraph, no act, or failure to
act, on the Executive's part shall be considered "willful" unless
done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the
best interest of the Company.
(d) Termination by the Executive. The Executive may
terminate his employment hereunder for Good Reason for
purposes of this Agreement, "Good Reason" shall mean:
(A) a failure by the Company to comply with any
material provision of this Agreement which has not been cured
within ten (10) days after notice of such noncompliance has
been given by the Executive to the Company;
(B) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (e)
hereof (and for purposes of this Agreement no such purported
termination shall be effective);
(C) The assignment to the Executive of any duties
materially inconsistent with his status as the President and
Chief Executive Officer of the Company or a material adverse
alteration in the nature or status of his responsibilities in
connection with such responsibilities. For purposes of this
Agreement, "President and Chief Executive Officer of the
Company" shall mean that if a reorganization or merger of the
Company occurs, the Executive will be the President and
Chief Executive Officer of (1) the Company if it is the
surviving entity in any merger, acquisition or other business
combination with the Company, or (2) the successor entity to
the Company in any merger, acquisition or other business
combination with the Company.
(D) A person or business organization, or affiliated
group of persons or business organizations who, or which, do
not now own or control 20% or more of the voting stock of the
Company, acquire ownership or control of 20% or more of the
voting stock of the Company, or its successor, and Equity
Group Holdings and its affiliates and its or their successors
then owns or controls less voting stock of the Company (or its
successor) than such person, business organization, or
affiliated group;
(E) Relocation of the Executive to a location which
is not within the Baltimore City Metropolitan area, the District
of Columbia, or the Suburban Maryland area adjacent to the
District of Columbia, except for required travel on the
Company's business to an extent substantially consistent with
the Executive's business travel obligations;
(F) The failure by the Company to continue in effect
any compensation or benefit plan in which the Executive
participated as of the Commencement Date and which is
material to the Executive's aggregate compensation and
benefits hereunder, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has
been made with respect to such plan, or the failure by the
Company to continue the Executive's participation therein (or
in such substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits
provided and the level of the Executive's participation relative
to other participants, as existed at the Commencement Date;
(G) The failure of the Company to obtain a
satisfactory agreement from any successor to assume and
agree to perform this Agreement.
(e) Any termination of the Executive's employment by
the Company or by the Executive (other than termination
pursuant to subsection (a) hereof) shall be communicated by
written Notice of Termination to the other party hereto in
accordance with Section 13 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean only a
notice which is based upon, and shall indicate, the specific
termination provision in this Agreement relied upon and shall
set 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.
(f) "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of
his death, (ii) if the Executive's employment is terminated
pursuant to subsection (b) above, thirty (30) days after Notice
of Termination is given (provided that the Executive shall not
have returned to the performance of his duties on a full-time
basis during such thirty (30) day period), (iii) if the
Executive's employment is terminated pursuant to subsection
(c) above, the date specified in the Notice of Termination, and
(iv) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given;
provided, however, that, if within thirty (30) days after any
Notice of Termination is given the party receiving such Notice
of Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be
the date on which the dispute is finally determined, either by
mutual written agreement of the parties, by a binding and final
arbitration award or by a final judgment, order or decree of a
court of competent jurisdiction (the time for appeal therefrom
having expired and no appeal having been perfected).
7.
Compensation Upon Termination or During Disability.
(a) During any period that the Executive fails to
perform his duties hereunder as a result of incapacity due to
physical or mental illness ("disability period") the Executive
shall continue to receive, or receive the benefit of (as the case
may be), all items described in Section 4 hereinabove at the
rate then in effect for such period until his employment is
terminated pursuant to Section 6(b) hereof, provided that
payments so made to the Executive during the first 180 days
of the disability period shall be reduced by the sum of the
amounts, if any, payable to the Executive at or prior to the
time of any such payment under disability benefit plans of the
Company or under the Social Security disability insurance
program, and which amounts were not previously applied to
reduce any such payment.
(b) The Company shall maintain in full force and effect,
for the continued benefit of the Executive for twelve months
following the Date of Termination due to Disability, all
employee welfare benefit plans and programs in which the
Executive was entitled to participate immediately prior to the
Date of Termination provided that the Executive's continued
participation is possible under the general terms and
provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is
barred, the Company shall arrange to provide the Executive
with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive under
such plans and programs from which his continued
participation is barred.
(c) If the Executive's employment is terminated by his
death, the Company shall pay any amounts due to, or for the
benefit of, the Executive under Section 4 through the date of
his death.
(d) If the Executive's employment shall be terminated
by the Company for Cause or by the Executive for other than
Good Reason, the Company shall pay all amounts under
Section 4 hereof due to, or for the benefit of, the Executive
through the Date of Termination at the rate in effect at the time
Notice of Termination is given and the Company shall have no
further obligations to the Executive under this Agreement.
(e) If (A) in breach of this Agreement, the Company
shall terminate the Executive's employment other than for
disability pursuant to Section 6(b) or for Cause (it being
understood that a purported termination for disability pursuant
to Section 6(b) or for Cause which is disputed and finally
determined not to have been proper shall be a termination by
the Company in breach of this Agreement) or (B) the
Executive shall terminate his employment for Good Reason,
then
(i) the Company shall pay all amounts due to, or for
the benefit of, the Executive under Section 4 through the Date
of Termination at the rate in effect at the time Notice of
Termination is given and all other unpaid amounts, if any, to
which the Executive is entitled as of the Date of Termination
under any compensation plan or program of the Company at
the time such payments are due;
(ii) In lieu of any further salary or bonus payments to
the Executive for periods subsequent to the date of the
termination of his employment, the Company shall pay as
severance pay to the Executive a salary and bonus severance
payment equal to three times 160% of the annual base salary
in effect immediately prior to the Executive's termination.
Such payment will be made in 18 even monthly payments on
the first day of each month beginning on the first day of the
month beginning immediately following the Executive's
termination; provided, however, that in the event the
termination of the Executive's employment occurs after the
third anniversary of the Commencement Date, the salary and
bonus severance payment will equal two times 160% of the
annual base salary in effect immediately prior to the
Executive's termination, and such payment will be made in 12
even monthly installments beginning on the first day of the
month beginning immediately following the Executive's
termination.
(iii) The Company shall pay to the Executive any
deferred compensation, including, but not limited to deferred
bonuses, allocated or credited to the Executive or his account
as of the date of termination. For purposes of this subsection,
deferred compensation does not include Second Stock under
subsection 4(k), the terms and conditions of which are
provided elsewhere in this Agreement.
(iv) The Company shall pay all reasonable legal fees
and expenses incurred by the Executive as a result of such
termination, including the reasonable fees and expenses of
enforcing the terms of this Agreement, or in connection with
any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Internal Revenue Code of
1986 as amended (the "Code") to any payment or benefit
provided hereunder).
(v) the Company shall maintain in full force and
effect, for the continued benefit of the Executive for 36
months following the date of termination of the Executive's
employment if such date is prior to the third anniversary of the
Commencement Date, and if such date is on or after the third
anniversary of the Commencement Date, for 24 months
following the date of the termination of the Executive's
employment, all employee welfare benefit plans and programs
in which the Executive was entitled to participate immediately
prior to the Date of Termination provided that the Executive's
continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is
barred, the Company shall arrange to provide the Executive
with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive under
such plans and programs from which his continued
participation is barred.
8. Death/Assignment of Stock Options and Stock. In the
event of the Executive's death, whether his death occurs during
or after the Term of this Agreement, all unexercised Stock
Options, and all Stock of the Company then owned by the
Executive will be assigned to his Estate.
9. Termination/Unexercised Stock Options. In the event
of the termination of the employment of the Executive for any
reason, all unexercised stock options granted to him hereunder
must be exercised by him, or his estate (or heir(s)) as the case
may be, before the first anniversary of the termination of his
employment, but in no event after the tenth anniversary of the
date of grant thereof, and any such options not exercised by
that date will lapse immediately thereafter.
10. Mitigation. In the event that the Executive receives
benefits from other employment after the Date of Termination
and during the then unexpired Term of this Agreement, the
benefits to be provided by the Company under the provisions
of Section 7(e)(v) shall be terminated.
11. Anti-Dilution/Recapitalization of the Company. In the
Event of any change in the number of issued shares of
Company Stock resulting from a subdivision or consolidation
of shares or other capital adjustment, or the payment of a stock
dividend, or other increase or decrease in such shares, then
appropriate adjustments shall be made by the Company with
respect to the Incentive Stock, the Second Stock, and with
respect to outstanding unexercised Stock Options and/or the
aggregate number of shares of Company Stock of the
Company in respect of which Stock Options may be exercised.
12. Noncompetition.
(a) So long as the Executive is employed by the
Company under this Agreement and unless this Agreement is
terminated for any reason, the Executive agrees not to enter
into competitive endeavors and not to undertake any
commercial activity which is contrary to the best interests of
the Company or its subsidiaries or affiliates, including
becoming an employee, owner (except for passive investments
of not more than three percent (3%) of the outstanding shares
of, or any other equity interest in, any company or entity listed
or traded on a national securities exchange or in an over-the-
counter securities market), officer, agent, advisor, consultant
or director of any firm or person which directly competes with
a line or lines of business of the Company. In the event the
Executive terminates his employment hereunder for any
reason, except Good Reason, the foregoing provisions will be
applicable for an additional period of 24 months following the
Executive's termination of his employment.
(b) During the Term of this Agreement and any period
thereafter during which or in respect of which the Executive
receives payments from the Company under Section 7, the
Executive will retain in confidence any and all confidential
information known to him concerning the Company and its
business and shall not use or disclose such information
without the approval of the Company except to the extent such
information has previously become public or as may be
required by law.
(c) In the event the Executive terminates his
employment hereunder for any reason except Good Reason,
for a period of 36 months following such termination the
Executive will not solicit the employment of any employee of
the Company.
(d) In the event the Executive terminates his
employment hereunder for Good Reason, for a period of 24
months following such termination the Executive will not
solicit the employment of any employee of the Company.
13. Successors; Binding Agreement.
(a) The Company 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 Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no
such succession had taken place. Failure of the Company to
obtain such assumption and 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 he would be entitled to hereunder if he terminated his
employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall
mean the Company as herein before defined and any successor
to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 12 or
which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts
would still be payable to him hereunder if he had continued to
live, all such amount unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be
no such designee, to the Executive's estate.
14. Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have
been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail,
return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If the Company:
▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: Corporate Secretary
or to such other address as any party may have furnished to the
others in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may
be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by the
Executive and such officer of the Company as may be
specifically designed by the Board. No waiver by either party
hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or
conditions as the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been
made by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws
of the District of Columbia without regard to its conflicts of
law principles.
16. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
17. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the
same instrument.
18. Entire Agreement. This Agreement sets forth the
entire agreement of the parties hereto in respect of the subject
matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and
any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and
canceled.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date and year first above written.
ATTEST: ▇▇▇▇▇▇▇ CORPORATION
/s/ By: /s/ (SEAL)
Name:
Title:
ATTEST: EXECUTIVE
/s/ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇