EXHIBIT 99.6
FORM OF SEVERANCE PROTECTION AGREEMENT
FOR EXECUTIVE OFFICERS
THIS AGREEMENT made as of the ___ day of August, 2006 (the "Effective
Date"), by and between Delta & Pine Land Company (the "Company") and (the
"Executive").
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the possibility of a Change in Control (as hereinafter
defined) exists and that the threat or the occurrence of a Change in
Control can result in significant distractions of its key management
personnel because of the uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its stockholders to retain the services of the
Executive in the event of the possibility of a Change in Control and to
ensure his continued dedication and efforts in such event without undue
concern for his personal financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Company in light of a possible Change in Control, the Company desires
to enter into this Agreement with the Executive to provide the Executive
with certain benefits.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of the
Effective Date and shall continue in effect until December 31, 2008;
provided, however, that on December 31, 2008 and on each anniversary
thereof, the term of this Agreement shall be automatically extended for one
year unless either the Company or the Executive shall have given six months
written notice to the other prior thereto that the term of this Agreement
shall not be so extended; and provided, further, however, that
notwithstanding any such notice by the Company not to extend, the term of
this Agreement shall not expire prior to the expiration of 24 months after
the occurrence of a Change in Control.
2. Definitions.
2.1. Accrued Compensation. For purposes of this Agreement, "Accrued
Compensation" shall mean an amount which shall include all amounts earned
or accrued through the "Termination Date" (as hereinafter defined) but not
paid as of the Termination Date including (a) base salary, (b)
reimbursement for reasonable and necessary expenses incurred by the
Executive on behalf of the Company during the period ending on the
Termination Date, (c) vacation and sick leave pay (to the extent provided
by Company policy or applicable law), and (d) bonuses and incentive
compensation (other than the "Pro Rata Bonus" (as hereinafter defined)).
2.2. Base Amount. For purposes of this Agreement, "Base Amount" shall
mean the greater of (a) the Executive's annual base salary at the rate in
effect immediately prior to the Change in Control and (b) the Executive's
annual base salary at the rate in effect on the Termination Date, and shall
include all amounts of his base salary that are deferred under the
qualified and non-qualified employee benefit plans of the Company or any
other agreement or arrangement.
2.3. Bonus Amount. For purposes of this Agreement, "Bonus Amount"
shall mean the Executive's highest annual bonus earned (whether paid or
unpaid) during any one of the last five fiscal years that ended prior to
the Change in Control (or, in each case, such lesser period for which
annual bonuses were paid or payable to the Executive).
2.4. Cause. For purposes of this Agreement, a termination of
employment is for "Cause" if the Executive has been convicted of a felony
involving moral turpitude or the termination is evidenced by a resolution
adopted in good faith by two-thirds of the Board that the Executive (a)
intentionally and continually failed substantially to perform his
reasonably assigned duties with the Company (other than a failure resulting
from the Executive's incapacity due to physical or mental illness or from
the Executive's assignment of duties that would constitute "Good Reason" as
hereinafter defined) which failure continued for a period of at least
thirty days after a written notice of demand for substantial performance
has been delivered to the Executive specifying the manner in which the
Executive has failed substantially to perform, or (b) intentionally engaged
in conduct which is demonstrably and materially injurious to the Company;
provided, however, that no termination of the Executive's employment shall
be for Cause as set forth in clause (b) above until (x) there shall have
been delivered to the Executive a copy of a written notice setting forth
that the Executive was guilty of the conduct set forth in clause (b) and
specifying the particulars thereof in detail, and (y) the Executive shall
have been provided an opportunity to be heard in person by the Board (with
the assistance of the Executive's counsel if the Executive so desires).
Neither an act nor a failure to act, on the Executive's part shall be
considered "intentional" unless the Executive has acted or failed to act
with a lack of good faith and with a lack of reasonable belief that the
Executive's action or failure to act was in the best interest of the
Company. Notwithstanding anything contained in this Agreement to the
contrary, no failure to perform by the Executive after a Notice of
Termination is given by the Executive shall constitute Cause for purposes
of this Agreement.
2.5. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean the occurrence of any of the following:
(a) An acquisition (other than directly from the Company) by any
"Person" (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the then outstanding
common shares ("Shares") or the combined voting power of the Company's
then outstanding voting securities; provided, however, in determining
whether a Change in Control has occurred pursuant to this Section,
Shares or voting securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan
(or a trust forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this
definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or
(iii) any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(b) The individuals who on August 1, 2006 are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at
least two-thirds of the members of the Board; provided, however, that
if the election, or nomination for election by the Company's common
stockholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent
Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) The consummation of:
(1) A merger, consolidation or reorganization with or into
the Company or in which securities of the Company are issued,
unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean
a merger, consolidation or reorganization with or into the
Company or in which securities of the Company are issued where:
(A) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own directly
or indirectly immediately following such merger,
consolidation or reorganization, at least fifty percent
(50%) of the combined voting power of the outstanding voting
securities of the corporation resulting from such merger or
consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their
ownership of the voting securities immediately before such
merger, consolidation or reorganization,
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds of the members of the board
of directors of the Surviving Corporation, or a corporation
beneficially directly or indirectly owning a majority of the
voting securities of the Surviving Corporation, and
(C) no Person other than (1) the Company, (2) any
Subsidiary, (3) any employee benefit plan (or any trust
forming a part thereof) that, immediately prior to such
merger, consolidation or reorganization, was maintained by
the Company or any Subsidiary, or (4) any Person who,
immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding voting securities or
Shares, has Beneficial Ownership of twenty percent (20%) or
more of the combined voting power of the Surviving
Corporation's then outstanding voting securities or its
common stock.
(2) A complete liquidation or dissolution of the Company; or
(3) The sale or other disposition of all or substantially
all of the assets of the Company to any Person (other than a
transfer to a Subsidiary or the distribution to the Company's
stockholders of the stock of a Subsidiary or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Shares
or voting securities as a result of the acquisition of Shares or voting
securities by the Company which, by reducing the number of Shares or voting
securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result of
the acquisition of Shares or voting securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the
Beneficial Owner of any additional Shares or voting securities which
increases the percentage of the then outstanding Shares or voting
securities Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
2.6. Company. For purposes of this Agreement, the "Company" shall
include the Company's "Successors and Assigns" (as hereinafter defined).
2.7. Confidential Information. For purposes of this Agreement means
(a) all technical and business information of the Company, whether
patentable or not, which is of a confidential, trade secret and/or
proprietary character and that is either developed by the Executive (alone
or with others) or to which the Executive has had access during his
employment, (b) all confidential evaluations, and (c) the confidential use
or non-use by the Company of technical or business information in the
public domain.
2.8. Disability. For purposes of this Agreement, "Disability" shall
mean a physical or mental infirmity which impairs the Executive's ability
to substantially perform his duties with the Company for a period of one
hundred eighty consecutive days and the Executive has not returned to his
full time employment prior to the Termination Date as stated in the "Notice
of Termination" (as hereinafter defined).
2.9. Good Reason. (a) For purposes of this Agreement, "Good Reason"
shall mean the occurrence after a Change in Control of any of the events or
conditions described in subsections (1) through (9) hereof:
(1) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which
represents an adverse change from his status, title, position or
responsibilities as in effect at any time within ninety days
preceding the date of a Change in Control or at any time
thereafter; the assignment to the Executive of any duties or
responsibilities which are inconsistent with his status, title,
position or responsibilities as in effect at any time within
ninety days preceding the date of a Change in Control or at any
time thereafter; or any removal of the Executive from or failure
to reappoint or reelect him to any of such offices or positions,
except in connection with the termination of his employment for
Disability, Cause, as a result of his death or by the Executive
other than for Good Reason;
(2) a reduction in the Executive's base salary or any
failure to pay the Executive any compensation or benefits to
which he is entitled within five days of notice thereof;
(3) a termination or reduction, without consent, of the
facilities (including office space and general location) and
staff reporting available to the Executive;
(4) the Company's requiring the Executive to be based at any
office or location more than 30 miles from that location at which
he performed his services for the Company immediately prior to
the Change in Control, except for (x) travel reasonably required
in the performance of the Executive's responsibilities and (y)
any relocation as to which the Executive has consented in
writing;
(5) the failure by the Company to provide the Executive with
compensation and benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward opportunities) to those
provided for under each other employee benefit plan, program and
practice in which the Executive was participating at any time
within ninety days preceding the date of a Change in Control or
at any time thereafter;
(6) the insolvency or the filing (by any party, including
the Company) of a petition for bankruptcy of the Company, which
petition is not dismissed within sixty days;
(7) any material breach by the Company of any provision of
this Agreement;
(8) any purported termination of the Executive's employment
for Cause by the Company which does not comply with the terms of
Section 2.4; or
(9) the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any Successors and Assigns to
assume and agree to perform this Agreement, as contemplated in
Section 8 hereof.
(b) Any event or condition described in Section 2.8(a)(1) through
(9) which occurs prior to a Change in Control but which the Executive
reasonably demonstrates (1) was at the request of a third party, or
(2) otherwise arose in connection with, or in anticipation of, a
Change in Control which actually occurs, shall constitute Good Reason
for purposes of this Agreement notwithstanding that it occurred prior
to the Change in Control.
(c) The Executive's right to terminate his employment pursuant to
this Section 2.8 shall not be affected by his incapacity due to a
Disability.
2.10. Notice of Termination. For purposes of this Agreement, following
a Change in Control, "Notice of Termination" shall mean a written notice of
termination from the Company of the Executive's employment which indicates
the specific termination provision in this Agreement relied upon and which
sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
2.11. Pro Rata Bonus. For purposes of this Agreement, "Pro Rata Bonus"
shall mean an amount equal to the Bonus Amount multiplied by a fraction the
numerator of which is the number of days in the Company's fiscal year in
which Executive's employment terminates through the Termination Date and
the denominator of which is 365.
2.12. Successors and Assigns. For purposes of this Agreement,
"Successors and Assigns" shall mean a corporation or other entity acquiring
all or substantially all the assets and business of the Company whether by
operation of law or otherwise, and any affiliate of such Successors and
Assigns.
2.13. Termination Date. For purposes of this Agreement, "Termination
Date" shall mean (a) in the case of the Executive's death, his date of
death, (b) in the case of Good Reason, the last day of his employment, and
(b) in all other cases, the date specified in the Notice of Termination;
provided, however, that if the Executive's employment is terminated by the
Company for Cause or due to Disability, the date specified in the Notice of
Termination shall be at least 30 days from the date the Notice of
Termination is given to the Executive, provided that in the case of
Disability the Executive shall not have returned to the full-time
performance of his duties during such period of at least 30 days.
3. Termination of Employment. If, during the term of this Agreement,
the Executive's employment with the Company shall be terminated within
twenty-four months following a Change in Control, the Executive shall be
entitled to the following compensation and benefits:
3.1. If the Executive's employment with the Company shall be
terminated (a) by the Company for Cause or Disability, (b) by reason of the
Executive's death, or (c) by the Executive other than for Good Reason and
other than during the 30 day period commencing on the first anniversary of
the date of the occurrence of a Change in Control (the "Window Period"),
the Company shall pay to the Executive the Accrued Compensation and, if
such termination is other than by the Company for Cause, the Pro Rata
Bonus.
3.2. If the Executive's employment with the Company shall be
terminated for any reason other than as specified in Section 3.1 or during
the Window Period, the Executive shall be entitled to the following:
(a) the Company shall pay the Executive all Accrued Compensation
and a Pro-Rata Bonus.
(b) the Company shall pay the Executive as severance pay and in
lieu of any further compensation for periods subsequent to the
Termination Date, in a single payment, an amount in cash equal to one
and one-half times the sum of (1) the Base Amount and (2) the Bonus
Amount.
(c) the Company shall maintain for the benefit of the Executive
and his spouse and any dependents, at the expense of the Company and
at no additional cost to the Executive, for 24 months from the
Termination Date, all Executive benefit programs and arrangements,
including but not limited to health insurance, including employee
medical plan benefits, group life insurance, individual life insurance
coverage, accidental death and dismemberment coverage, long term
disability coverage, and other fringe benefits or benefit plans
generally afforded other executive officers of the Company. If any
such coverage cannot be maintained because of requirements of the
insurance or other companies providing such benefits, the Company
shall provide and pay for alternative coverage providing essentially
identical benefits at no additional cost to the Executive. The above
period is to be in addition to that period of time that the Executive
may elect COBRA coverage under such applicable benefit plans. In this
regard, it is the specific agreement of the parties that those
benefits which are typically available under COBRA coverage, at the
expense of the Executive, will be available to the Executive at his
expense for a period of 18 months following the expiration of the 24
months listed above, even though COBRA coverage might otherwise be
unavailable as provided by law.
(d) the Company shall make available at its expense for the
Executive's use for 18 months following the Termination Date, a
company vehicle of a make and model in accordance with the vehicle
policy in effect as of the date of the Change in Control.
(e) the Executive will likely be required to employ a reputable
national executive career transition agency to assist him in locating
and securing suitable employment opportunities. To compensate the
Executive for the costs which he will likely incur, the Company will
pay to the Executive at the time of termination an amount equal to
$30,000. The Executive will be responsible for any and all expenses in
pursuing an executive level employment or job opportunity search and
the Company shall have no other or further obligations to the
Executive except as otherwise provided in this Agreement.
(f) The Company shall pay the Executive a lump sum payment in an
amount equal to difference between the present values of (1) the
Executive's retirement benefit under the Company Retirement Plan (the
"Retirement Plan"), determined on the date of termination as if the
Executive were credited with an additional one and one-half Years of
Credited Service (as such term is defined in the Retirement Plan) and
annual compensation continued at the same rate as in effect on the CIC
Date under the Retirement Plan and (2) the Executive's retirement
benefit under the Retirement Plan, determined on the date of
termination based on the Executive's actual Years of Credited Service
under the Retirement Plan.
3.3. (a) The amounts provided for in Sections 3.1 and 3.2(a), (b), (e)
and (f) shall be paid in a single lump sum cash payment within five days
after the Executive's Termination Date (or earlier, if required by
applicable law).
(b) In the event that the Executive is a "specified employee" for
purposes of Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code") on the Executive's Termination Date, and if the
Company determines that the delay is necessary in order to comply with
Section 409A(a)(2)(B) of the Code and an Accounting Firm (as defined
in Section 6.2) agrees with the Company's determination, payments of
benefits upon termination of employment (other than under Section 3.1
and Accrued Compensation under Section 3.2(a)) shall be made (with
interest) within ten (10) days following (i) the date that is six
months after the Termination Date or (ii) the date of the Executive's
death, if earlier.
3.4. The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of
any compensation or benefits provided to the Executive in any subsequent
employment except as provided in Section 3.2(c).
3.5. The Executive's entitlement to any other compensation or benefits
or any indemnification shall be determined in accordance with the Company's
employee benefit plans and other applicable programs, policies and
practices or any indemnification agreement then in effect.
4. Notice of Termination. Following a Change in Control, any purported
termination of the Executive's employment by the Company shall be
communicated by Notice of Termination to the Executive. For purposes of
this Agreement, no such purported termination shall be effective without
such Notice of Termination.
5. Treatment of Equity Awards. Nothing in this Agreement shall amend
or modify the terms of any equity compensation award or grant document that
the Executive holds or to which the Executive is a party.
6. Excise Tax Limitation.
6.1. Gross-Up Payment. In the event it shall be determined that any
payment (other than the payment provided for in this Section) or
distribution of any type to or for the benefit of the Executive, by the
Company, any of its affiliates, any Person who acquires ownership or
effective control of the Company or ownership of a substantial portion of
the Company's assets (within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder) or any affiliate of such Person, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Total Payments"), would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are collectively referred to as the "Excise Tax"),
then the Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Executive
of all taxes (including any interest or penalties imposed with respect to
such taxes), including any income tax, employment tax or Excise Tax imposed
upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Total Payments. For
purposes of determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal, state and local income taxes and employment
taxes at the highest marginal rate of federal, state and local income
taxation and employment taxation in the calendar year in which the Gross-Up
Payment is to be made and/or the calendar year in which the Termination
Date occurs, as applicable, net of the maximum reduction in federal income
taxes that may be obtained from the deduction of such state and local
taxes.
6.2. Determination By Accountant. All mathematical determinations, and
determinations as to whether any of the Total Payments are "parachute
payments" (within the meaning of Section 280G of the Code), that are
required to be made under this Subsection, including determinations as to
whether a Gross-Up Payment is required, the amount of such Gross-Up Payment
and amounts relevant to the last sentence of this Subsection shall be made
by an independent accounting firm selected by the Executive from among the
four largest accounting firms in the United States (the "Accounting Firm"),
which shall provide its determination (the "Determination"), together with
detailed supporting calculations regarding the amount of any Gross-Up
Payment and any other relevant matter, both to the Company and the
Executive by no later than ten days following the Termination Date, if
applicable, or such earlier time as is requested by the Company or the
Executive. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Executive and the Company with an
opinion reasonably acceptable to the Executive and the Company that no
Excise Tax is payable (including the reasons therefor) and that he has
substantial authority not to report any Excise Tax on his federal income
tax return. If a Gross-Up Payment is determined to be payable, it shall be
paid to the Executive within ten (10) days after the Determination (and all
accompanying calculations and other material supporting the Determination)
is delivered to the Company or the Executive. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive, absent
manifest error. As a result of uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments not made by the
Company should have been made ("Underpayment"), or that Gross-Up Payments
will have been made by the Company which should not have been made
("Overpayments"). In either such event, the Accounting Firm shall determine
the amount of the Underpayment or Overpayment that has occurred. In the
case of an Underpayment, the amount of such Underpayment (together with any
interest and penalties payable by the Executive as a result of such
Underpayment) shall be promptly paid by the Company to or for the benefit
of the Executive. In the case of an Overpayment, the Executive shall, at
the direction and expense of the Company, take such steps as are reasonably
necessary (including, if reasonable, the filing of returns and claims for
refund), follow reasonable instructions from, and procedures established
by, the Company, and otherwise reasonably cooperate with the Company to
correct such Overpayment, provided, however, that (i) Executive shall not
in any event be obligated to return to the Company an amount greater than
the net after-tax portion of the Overpayment that he has retained or has
recovered as a refund from the applicable taxing authorities and (ii) this
provision shall be interpreted in a manner consistent with the intent to
make the Executive whole, on an after-tax basis, from the application of
the Excise Tax, it being understood that the correction of an Overpayment
may result in the Executive repaying to the Company an amount which is less
than the Overpayment. The fees and expenses of the Accounting Firm shall be
paid by the Company.
7. Confidentiality.
7.1. The Executive shall use his best efforts and diligence both
during and after employment by the Company to protect the confidential,
trade secret and/or proprietary character of all Confidential Information.
The Executive shall not, directly or indirectly, use (for the Executive or
another) or disclose any Confidential Information, for so long as it shall
remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of the
Executive's duties with the Company. The Executive shall promptly deliver
to the Company, at the termination of the Executive's employment, or at any
other time at the Company's request, without retaining any copies, all
documents and other material in the Executive's possession relating,
directly or indirectly, to any Confidential Information.
7.2. Each of the Executive's obligations in this Section 8 shall also
apply to the confidential, trade secret and proprietary information learned
or acquired by the Executive during his employment from others with whom
the Company has a business relationship. The Executive understands that he
is not to disclose to the Company, or use for its benefit, any of the
confidential, trade secret or proprietary information of others, including
any of the Executive's former employers.
7.3. In no event shall an asserted violation of the provisions of this
Section 8 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
8. Successors; Binding Agreement.
8.1. This Agreement shall be binding upon and shall inure to the
benefit of the Company, its Successors and Assigns, and the Company shall
require any Successors and Assigns 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 or assignment had
taken place.
8.2. Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal personal representative.
9. Fees and Expenses. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by
the Executive as they become due as a result of (a) the Executive seeking
to obtain or enforce any right or benefit provided by this Agreement
(including, but not limited to, any such fees and expenses incurred in
connection with (i) the dispute and (ii) the Gross-Up Payment whether as a
result of any applicable government taxing authority proceeding, audit or
otherwise) or by any other plan or arrangement maintained by the Company
under which the Executive is or may be entitled to receive benefits), and
(b) the Executive's hearing before the Board as contemplated in Section 2.4
of this Agreement; provided, however, that the circumstances set forth in
clause (a) occurred on or after a Change in Control.
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, by overnight courier or by facsimile, addressed
to the respective addresses and facsimile numbers last given by each party
to the other, provided that all notices to the Company shall be directed to
the attention of the Board with a copy to the Secretary of the Company. All
notices and communications shall be deemed to have been received on the
date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only
upon receipt.
11. 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 Company (except
for any severance or termination policies, plans, programs or practices)
and for which the Executive may qualify, nor shall anything herein limit or
reduce such rights as the Executive may have under any other agreements
with the Company (except for any severance or termination agreement).
Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Company shall be
payable in accordance with such plan or program, except as explicitly
modified by this Agreement.
12. No Guaranteed Employment. The Executive and the Company
acknowledge that, except as may otherwise be provided under any other
written agreement between the Executive and the Company, the employment of
the Executive by the Company is "at will" and may be terminated by either
the Executive or the Company at any time.
13. Settlement of Claims. The Company'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 Company may have against the Executive or
others.
14. Mutual Non-Disparagement. The Executive agrees that it will not
make or publish any statement critical of the Company, its affiliates and
their respective executive officers and directors, or in any way adversely
affecting or otherwise maligning the business or reputation of any member
of the Company, its affiliates and subsidiaries and their respective
officers, directors and employees. The Company, its affiliates and
subsidiaries agree and the Company shall use its best efforts to cause
their respective executive officers and directors to agree, that they will
not make or publish any statement critical of the Executive, or in any way
adversely affecting or otherwise maligning the Executive's reputation.
15. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Company. No waiver
by either party hereto at any time of any breach by the other party hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreement or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not expressly set forth in this Agreement.
16. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware without
giving effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be brought and maintained in a
court of competent jurisdiction in the State of Delaware.
17. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
ATTEST: By:
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Name: Kenneth Avery
Title: Vice President -
Finance, Treasurer and
Assistant Secretary
By:
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