EXHIBIT 10.29
Date
Name
Street
City, State Zip
Dear :
BMC Industries, Inc. considers the establishment and maintenance of
a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its stockholders. In this connection, the
Company recognizes that, as is the case with many publicly held corporations,
the possibility of a Change in Control may arise and that such possibility,
and the uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to the
detriment of the Company and its stockholders.
Accordingly, the Board has determined that appropriate steps should
be taken to minimize the risk that Company management will depart prior to a
Change in Control, thereby leaving the Company without adequate management
personnel during such a critical period, and to reinforce and encourage the
continued attention and dedication of members of the Company's management to
their assigned duties without distraction in circumstances arising from the
possibility of a Change in Control. In particular, the Board believes it
important, should BMC Industries, Inc., or its stockholders receive a
proposal for transfer of control, that you be able to continue your
management responsibilities and assess and advise the Board whether such
proposal would be in the best interests of BMC Industries, Inc. and its
stockholders and to take other action regarding such proposal as the Board
might determine to be appropriate, without being influenced by the
uncertainties of your own personal situation.
The Board recognizes that continuance of your position with the
Company involves a substantial commitment to the Company in terms of your
personal life and professional career and the possibility of foregoing
present and future career opportunities, for which the Company receives
substantial benefits. Therefore, to induce you to remain in the employ of the
Company, this Agreement, which has been approved by the Board, sets forth the
benefits which the Company agrees will be provided to you in the event your
employment with the Company is terminated in connection with a Change in
Control under the circumstances described below.
1. DEFINITIONS. The following terms will have the meaning set forth
below unless the context clearly requires otherwise. Terms defined elsewhere
in this Agreement will have the same meaning throughout this Agreement.
(a) "AGREEMENT" means this letter agreement as amended, extended or
renewed from time to time in accordance with its terms.
(b) "BOARD" means the board of directors of the Parent Corporation
duly qualified and acting at the time in question.
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(c) "CAUSE" means: (i) the willful and continued failure by you to
perform substantially your duties with the Company after a demand for
substantial performance is delivered to you by the President and Chief
Executive Officer which specifically identifies the manner in which such
person believes that you have not substantially performed your duties; or
(ii) your conviction (including a plea of nolo contendere) of willfully
engaging in illegal conduct constituting a felony or gross misdemeanor under
federal or state law which is materially and demonstrably injurious to the
Company. For purposes of this definition, no act, or failure to act, on your
part will be considered "willful" unless done, or omitted to be done, by you
in bad faith and without reasonable belief that your action or omission was
in, or not opposed to, the best interests of the Company. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by
the Board (or a committee thereof) or based upon the advice of counsel for
the Company will be conclusively presumed to be done, or omitted to be done,
by you in good faith and in the best interests of the Company. It is also
expressly understood that your attention to matters not directly related to
the business of the Company will not provide a basis for termination for
Cause so long as the Board did not expressly disapprove in writing of your
engagement in such activities either before or within a reasonable period of
time after the Board knew or could reasonably have known that you engaged in
those activities. Notwithstanding the foregoing, you will not be deemed to
have been terminated for Cause unless and until there has been delivered to
you a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the entire membership of the Board at a meeting of the
Board called and held for the purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the
Board), finding that in the good faith opinion of the Board you were guilty
of the conduct set forth above in clauses (i) or (ii) of this definition and
specifying the particulars thereof in detail.
(d) "CHANGE IN CONTROL" means any of the following: (i) the sale,
lease, exchange, or other transfer of all or substantially all of the assets
of the Parent Corporation, in one transaction or in a series of related
transactions, to any Person; (ii) the approval by the stockholders of the
Parent Corporation of any plan or proposal for the liquidation or dissolution
of the Parent Corporation; (iii) any Person is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of fifty percent (50%) or more of the combined voting power of
the Parent Corporation's outstanding securities ordinarily having the right
to vote at elections of directors; (iv) individuals who constitute the Board
on the date of this Agreement (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date of this Agreement whose election, or
nomination for election, by the Parent Corporation's stockholders, was
approved by a vote of at least a majority of the directors comprising the
Incumbent Board (either by a specific vote or by approval of the proxy
statement of the Parent Corporation in which such person is named as a
nominee for director, without objection to such nomination) will, for
purposes of this clause (iv), be deemed to be a member of the Incumbent
Board; or (v) a change in control of a nature that is determined by
independent legal counsel to the Company to be required to be reported
(assuming such event has not been "previously reported") in response to Item
1(a) of the Current Report on Form 8-K, as in effect on the date hereof,
pursuant to section 13 or 15(d) of the Exchange Act, whether or not the
Parent Corporation is then subject to such reporting requirement.
(e) "CODE" means the Internal Revenue Code of 1986, as amended.
(f) "COMPANY" means the Parent Corporation, any Subsidiary and any
Successor.
(g) "CONFIDENTIAL INFORMATION" means information which is proprietary
to the Company or proprietary to others and entrusted to the Company, whether or
not trade secrets. It includes
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information relating to business plans and to business as conducted or
anticipated to be conducted, and to past or current or anticipated products or
services. It also includes, without limitation, information concerning research,
development, purchasing, accounting, marketing and selling. All information
which you have a reasonable basis to consider confidential is Confidential
Information, whether or not originated by you and without regard to the manner
in which you obtain access to that and any other proprietary information.
(h) "DATE OF TERMINATION" following a Change in Control (or prior to
a Change in Control if your termination was either a condition of the Change
in Control or was at the request or insistence of any Person (other than the
Company) related to the Change in Control) means: (i) if your employment is
to be terminated by the Company for Cause or by you for Good Reason, the date
specified in the Notice of Termination; (ii) if your employment is to be
terminated by the Company for any reason other than Cause, Disability, death
or Retirement, the date specified in the Notice of Termination, which in no
event may be a date earlier than sixty (60) calendar days after the date on
which a Notice of Termination is given, unless an earlier date has been
expressly agreed to by you in writing either in advance of, or after,
receiving such Notice of Termination; or (iii) if your employment is
terminated by reason of death or Retirement, the date of death or Retirement,
respectively. In the case of termination by the Company of your employment
for Cause, if you have not previously expressly agreed in writing to the
termination, then within thirty (30) calendar days after receipt by you of
the Notice of Termination with respect thereto, you may notify the Company
that a dispute exists concerning the termination, in which event the Date of
Termination will be the date set either by mutual written agreement of the
parties or by the arbitrators in a proceeding as provided in Section 12 of
this Agreement. During the period beginning on the date you or the Company,
as the case may be, receive Notice of Termination and ending on the Date of
Termination, the Company will continue to pay you your full compensation and
benefits and cause your continued participation in all Plans, in effect
immediately prior to the time the Notice of Termination is given and until
the dispute is resolved in accordance with Section 12 of this Agreement.
(i) "DISABILITY" means a disability as defined in the Company's
long-term disability plan as in effect immediately prior to the Change in
Control or, in the absence of such a plan, means permanent and total
disability as defined in section 22(e)(3) of the Code.
(j) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(k) "GOOD REASON" means:
(i) an adverse change in your status or position(s) as an
executive of the Company as in effect immediately prior to the Change
in Control, including, without limitation, any adverse change in you
status or position(s) as a result of a material diminution in your
duties or responsibilities (other than, if applicable, any such change
directly attributable to the fact that the Company is no longer
publicly owned) or the assignment to you of any duties or
responsibilities which, in your reasonable judgement, are inconsistent
with such status of position(s), or any removal of you from or any
failure to reappoint or reelect you to such position(s) (except in
connection with the termination of your employment for Cause,
Disability or Retirement or as a result of your death or by you other
than for Good Reason);
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(ii) a reduction by the Company in your rate of total
compensation (including, without limitation, salary and bonuses), or an
adverse change in the form of timing of the payment thereof, as in
effect immediately prior to the Change in Control;
(iii) the failure by the Company to continue in effect any
Plan in which you (and/or your family or dependents) are participating
at any time during the ninety (90)-calendar-day period immediately
preceding the Change in Control (or Plans providing you (and/or your
family or dependents) with at least substantially similar benefits)
other than as a result of the normal expiration of any such Plan in
accordance with its terms as in effect immediately prior to the ninety
(90)-calendar-day period immediately preceding the time of the Change
in Control, or the taking of any action, or the failure to act, by the
Company which would adversely affect your (and/or your family's or
dependent's) continued participation in any of such Plans on at least
as favorable a basis to you (and/or your family or dependents) as is
the case on the date of the Change in Control or which would materially
reduce your (and/or your family's or dependent's) benefits in the
future under any of such Plans or deprive you (and/or your family or
dependents) of any material benefit enjoyed by you (and/or your family
or dependents) at the time of the Change in Control;
(iv) the Company's requiring you to be based anywhere other
than where your office is located immediately prior to the Change in
Control, except for required travel on the Company's business, and then
only to the extent substantially consistent with the business travel
obligations which you undertook on behalf of the Company during the
ninety (90)-calendar-day period immediately preceding the Change in
Control (without regard to travel related to or in anticipation of the
Change in Control);
(v) the failure by the Company to obtain from any Successor
the assent to this Agreement contemplated by Section 5 of this
Agreement;
(vi) any purported termination by the Company of your
employment which is not properly effected pursuant to a Notice of
Termination and pursuant to any other requirements of this Agreement,
and for purposes of this Agreement, no such purported termination will
be effective; or
(vii) any refusal by the Company to continue to allow you to
attend to matters or engage in activities not directly related to the
business of the Company which, at any time prior to the Change in
Control, you were not expressly prohibited in writing by the Board from
attending to or engaging in.
Notwithstanding anything in the foregoing to the contrary, your
termination of employment with the Company for any reason other than death,
Disability or Retirement within the thirty (30) day period beginning on the one
hundred eighty first (181st) calendar day following a Change in Control and
ending on the two hundred tenth (210th) calendar day following a Change in
Control will be conclusively deemed to be for Good Reason.
(l) "MONTHLY BASE COMPENSATION" means your monthly base cash salary
from the Company attributable to services rendered as an employee of the Company
at the rate in effect
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immediately prior to the Change in Control, determined without regard to the
amount of contributions made by the Company with respect to you under any
qualified cash or deferred arrangement or cafeteria plan that is not then
includable in your income by operation of section 402(a)(8) or section 125 of
the Code and without regard to amounts deferred, whether voluntarily or
involuntarily and whether vested or nonvested, pursuant to any Plan.
(m) "NOTICE OF TERMINATION" means a written notice which indicates the
specific termination provision in this Agreement pursuant to which the notice is
given. Any purported termination by the Company or by you following a Change in
Control (or prior to a Change in Control if your termination was either a
condition of the Change in Control or was at the request or insistence of any
Person (other than the Company) related to the Change in Control) must be
communicated by written Notice of Termination.
(n) "PARENT CORPORATION" means BMC Industries, Inc. and any Successor.
(o) "PERSON" means and includes any individual, corporation,
partnership, group, association or other "person," as such term is used in
section 14(d) of the Exchange Act, other than the Parent Corporation, a
wholly-owned subsidiary of the Parent Corporation or any employee benefit
plan(s) sponsored by the Parent Corporation or a wholly-owned subsidiary of the
Parent Corporation.
(p) "PLAN" means any compensation plan (such as a stock option,
restricted stock plan or other equity-based plan), or any employee benefit plan
(such as a thrift, pension, profit sharing, medical, dental, disability,
accident, life insurance, relocation, salary continuation, expense
reimbursements, vacation, fringe benefits, office and support staff plan or
policy) or any other plan, program, policy or agreement of the Company intended
to benefit employees (and/or their families or dependents) generally, management
employees (and/or their families or dependents) as a group or you (and/or your
family or dependents) in particular.
(q) "RETIREMENT" means termination of your employment with the Company
on or after the day on which you attain the age of sixty-five (65).
(r) "SUBSIDIARY" means any corporation at least a majority of whose
securities having ordinary voting power for the election of directors is at the
time owned by the Company and/or one (1) or more Subsidiaries or any operating
division of the Company.
(s) "SUCCESSOR" means any Person that succeeds to, or has the practical
ability to control (either immediately or with the passage of time), the Parent
Corporation's business directly, by merger, consolidation or other form of
business combination, or indirectly, by purchase of the Parent Corporation's
voting securities, all or substantially all of its assets or otherwise.
2. BENEFITS UPON A CHANGE IN CONTROL TERMINATION. If your employment
with the Company is terminated for any reason other than death, Cause,
Disability or Retirement, or if you terminate your employment with the Company
for Good Reason either: (a) within the two hundred ten (210) calendar-day-period
immediately following a Change in Control; or (b) prior to a Change in Control
if your termination was either a condition of the Change in Control or was
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at the request or insistence of a Person (other than the Company) related to the
Change in Control, then:
(i) PERIODIC CASH PAYMENTS. On or before the fifth calendar
day of each of the twelve (12) calendar months following the month
during which the Date of Termination occurs, the Company will make a
cash payment to you in an amount equal to your Monthly Base
Compensation. If you die or attain age sixty-five (65) before the end
of this twelve (12) month period, such payments will end as of and
including the month during which you die or attain age sixty-five (65).
If you obtain employment at any time during such twelve (12) month
period, any "base salary" that you receive during any given month
within such period as a result of such employment will be offset
against the Company's corresponding monthly payment obligation under
this clause (i). You have no obligation, however, to mitigate damages
by seeking or accepting alternative employment during such twelve (12)
month period. For purposes of applying the foregoing, the term "base
salary" is defined as cash compensation paid at intervals no less
frequent than monthly which is not incentive based and is not paid in
lieu of benefits.
(ii) LIMITATION ON PAYMENTS AND BENEFITS. Notwithstanding
anything in this Agreement to the contrary, if any of the payments to
be made in connection with this Agreement, together with any other
payments or benefits which you have the right to receive from the
Company or any corporation which is a member of an "affiliated group"
(as defined in section 1504(a) of the Code without regard to section
1504(b) of the Code) of which the Company is a member, constitute an
"excess parachute payment" (as defined in section 280G(b) of the Code),
the payments to be made in connection with this Agreement shall be
reduced to the extent necessary to prevent any portion of such payments
or benefits from becoming subject to the excise tax imposed under
section 4999 of the Code; provided, that such reduction shall be made
only if the aggregate amount of the payments after such reduction
exceeds the difference between (A) the amount of such payments absent
such reduction minus (B) the aggregate amount of the excise tax imposed
under section 4999 of the Code attributable to any such excess
parachute payments arising in connection with such Change in Control.
The determination as to whether any such decrease in the payments to be
made in connection with this Agreement is necessary must be made in
good faith by legal counsel or a certified public accountant selected
by you and reasonably acceptable to the Company, and such determination
will be conclusive and binding upon you and the Company. In the event
that a reduction is necessary, you will have the right to designate the
particular payments or benefits that are to be reduced or eliminated so
that no portion of the payments or benefits to be made or provided to
you in connection with this Agreement will be excess parachute payments
subject to the excise tax under Code section 4999. The Company will pay
or reimburse you on demand for the reasonable fees, costs and expenses
of the counsel or accountant selected to make the determinations under
this clause (ii).
For purposes of this Section 2, your employment with the Company will be deemed
to have been terminated on the date on which the Company or you, as the case may
be, receives Notice of Termination notwithstanding that your Date of Termination
occurs following the expiration of the two hundred ten (210) calendar-day-period
referenced in clause (a).
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3. INDEMNIFICATION. Following a Change in Control, the Company will
indemnify and advance expenses to you to the full extent permitted by law and
the Company's articles of incorporation and bylaws for damages, costs and
expenses (including, without limitation, judgements, fines, penalties,
settlements and reasonable fees and expenses of your counsel) incurred in
connection with all matters, events and transactions relating to your service to
or status with the Company and any other corporation, employee benefit plan or
other entity with whom you served at the request of the Company.
4. CONFIDENTIALITY. You will not use, other than in connection with
your employment with the Company, or disclose any Confidential Information to
any person not employed by the Company or not authorized by the Company to
receive such Confidential Information, without the prior written consent of the
Company; and you will use reasonable and prudent care to safeguard and protect
and prevent the unauthorized disclosure of Confidential Information. Nothing in
this Agreement will prevent you from using, disclosing or authorizing the
disclosure of any Confidential Information: (a) which is or hereafter becomes
part of the public domain or otherwise becomes generally available to the public
through no fault of yours; (b) to the extent and upon the terms and conditions
that the Company may have previously made the Confidential Information available
to certain persons; or (c) to the extent that you are required to disclose such
Confidential Information by law or judicial or administrative process.
5. SUCCESSORS. The Company will seek to have any Successor, by
agreement in form and substance satisfactory to you, assent to the fulfillment
by the Company of the Company=s obligations under this Agreement. Failure of the
Company to obtain such assent at least three (3) business days prior to the time
a Person becomes a Successor (or where the Company does not have at least three
(3) business days= advance notice that a Person may become a Successor, within
one (1) business day after having notice that such Person may become or has
become a Successor) will constitute Good Reason for termination by you of your
employment.
6. FEES AND EXPENSES. The Company, upon demand, will pay or reimburse
you for all reasonable legal fees, court costs, experts' fees and related costs
and expenses incurred by you in connection with any actual, threatened or
contemplated litigation or legal, administrative, arbitration or other
proceeding relating to this Agreement to which you are or reasonably expect to
become a party, whether or not initiated by you, including, without limitation:
(a) all such fees and expenses, if any, incurred in contesting or disputing any
such termination; or (b) your seeking to obtain or enforce any right or benefit
provided by this Agreement; provided, however, you will be required to repay
(without interest) any such amounts to the Company to the extent that a court
issues a final and non-appealable order setting forth the determination that the
position taken by you was frivolous or advanced by you in bad faith.
7. BINDING AGREEMENT. This Agreement inures to the benefit of, and is
enforceable by, you, your personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
die after you become entitled to, but before you receive, any amounts payable to
you under this Agreement, all such amounts, unless otherwise provided in this
Agreement, will be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, it there be no such designee, to your
estate.
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8. NO MITIGATION. Except as expressly provided in clause (i) of Section
2 of this Agreement, you will not be required to mitigate the amount of any
payments the Company becomes obligated to make to you in connection with this
Agreement by seeking other employment or otherwise and the payments to be made
to you in connection with this Agreement may not be reduced, offset or subject
to recovery by the Company by any payments or benefits you may receive from
other employment or otherwise.
9. NO SETOFF. Except as provided in Section 10 of this Agreement, the
Company will have no right to setoff payments owed to you under this Agreement
against amounts owed or claimed to be owed by you to the Company under this
Agreement or otherwise.
10. TAXES. All payments to be made to you in connection with this
Agreement will be subject to required withholding of federal, state and local
income, excise and employment-related taxes which withholding shall be
consistent with the determination described in clause (ii) of Section 2 of this
Agreement.
11. NOTICES. For the purpose of this Agreement, notices and all other
communications provided for in, or required under, this Agreement must be in
writing and will be deemed to have been duly given when personally delivered or
when mailed by United States registered or certified mail, return receipt
requested, postage prepaid and addressed to each party's respective address set
forth on the first page of this Agreement (provided that all notices to the
Company must be directed to the attention of the President and Chief Executive
Officer), or to such other address as either party may have furnished to the
other in writing in accordance with these provisions, except that notice of
change of address will be effective only upon receipt.
12. DISPUTES. Any dispute, controversy or claim for damages arising
under or in connection with the Agreement shall be settled exclusively by
arbitration in Minneapolis, Minnesota by three (3) arbitrators in accordance
with the rules of the American Arbitration Association then in effect. Judgement
may by entered on the arbitrators' award in any court having jurisdiction. The
Company will be entitled to seek an injunction or restraining order in a court
of competent jurisdiction (within or without the State of Minnesota) to enforce
the provisions of Section 4 of this Agreement.
13. JURISDICTION. Except as specifically provided otherwise in the
Agreement, the parties agree that any action or proceeding arising under or in
connection with this Agreement must be brought in a court of competent
jurisdiction in the State of Minnesota, and hereby consent to the exclusive
jurisdiction of said courts for this purpose and agree not to assert that such
courts are an inconvenient forum.
14. RELATED AGREEMENTS. To the extent that any provision of any other
Plan or agreement between the Company and you limits, qualifies or is
inconsistent with any provision of this Agreement, then for purposes of this
Agreement, while such other Plan or agreement remains in force, the provision of
this Agreement will control and such provision of such other Plan or agreement
will be deemed to have been superseded, and to be of no force or effect, as if
such other agreement had been formally amended to the extent necessary to
accomplish such purpose. Nothing in this Agreement prevents or limits your
continuing or future participation in any Plan provided by the Company and for
which you may qualify, and nothing in this Agreement
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limits or otherwise affects the rights you may have under any Plans or other
agreements with the Company. Amounts which are vested benefits or which you are
otherwise entitled to receive under any Plan or other agreement with the Company
at or subsequent to the Date of Termination will be payable in accordance with
such Plan or other agreement.
15. NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Agreement is
intended to provide you with any right to continue in the employ of the Company
for any period of specific duration or interfere with or otherwise restrict in
any way your rights or the rights of the Company, which rights are hereby
expressly reserved by each, to terminate your employment at any time for any
reason or no reason whatsoever, with or without cause.
16. CHANGE OF SUBSIDIARY STATUS. In the event that, prior to a Change
in Control: (a) a Subsidiary is sold, merged, transferred or in any other manner
or for any other reason ceases to be a Subsidiary; (b) your primary employment
duties are with the Subsidiary at the time of the occurrence of such event; and
(c) you do not, in conjunction therewith, transfer employment directly to the
Company or another Subsidiary, then this Agreement will become null and void.
17. SURVIVAL. The respective obligations of, and benefits afforded
to, the Company and you which by their express terms or clear intent survive
termination of your employment with the Company or termination of this
Agreement, as the case may be, including, without limitation, the provisions
of Sections 2, 3, 4, 5, 6, 9, 10, 11 and 12 of this Agreement, will survive
termination of your employment with the Company or termination of this
Agreement, as the case may be, and will remain in full force and effect
according to their terms.
18. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed
to in a writing signed by you and the President and Chief Executive Officer.
No waiver by any party to this Agreement at any time of any breach by another
party to this Agreement of, or of compliance with, any condition or provision
of this Agreement to be performed by such party will be deemed a waiver of
similar or dissimilar provisions or conditions at 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 to this Agreement have been
made by any party which are not expressly set forth in this Agreement. This
Agreement and the legal relations among the parties as to all matters,
including, without limitation, matters of validity, interpretation,
construction, performance and remedies, will be governed by and construed
exclusively in accordance with the internal laws of the State of Minnesota
(without regard to the conflict of laws provisions of the State of Minnesota
or of any other jurisdiction), except to the extent that the provisions of
the corporate law of Minnesota may apply to the internal affairs of the
Company. Headings are for purposes of convenience only and do not constitute
a part of this Agreement. The parties to this Agreement agree to perform, or
cause to be performed, such further acts and deeds and to execute and
deliver, or cause to be executed and delivered, such additional or
supplemental documents or instruments as may be reasonably required by the
other party to carry into effect the intent and purpose of this Agreement.
The invalidity or unenforceability of all or any part of any provision of
this Agreement will not affect the validity or enforceability of the
remainder of such provision or of any other provision of this Agreement,
which will remain in full force and effect. This Agreement may be executed in
several counterparts, each of which will be deemed to be an original, but all
of which together will constitute one and the same instrument.
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If this letter correctly sets forth our agreement on the subject matter
discussed above, kindly sign and return to the Company the enclosed copy of this
letter which will then constitute our agreement on this subject.
Sincerely,
By: ___________________________
Paul B. Burke
Chairman and Chief Executive Officer
Agreed to this___________ day of _____________, 2000.
__________________________________________
(Name)