Delaware
(State
or other jurisdiction
of
incorporation )
|
1-15274
(Commission
File No.)
|
26-0037077
(IRS
Employer
Identification
No.)
|
6501
Legacy Drive
Plano,
Texas
(Address
of principal executive offices)
|
75024-3698
(Zip
code)
|
(d)
|
Exhibit 10.1
|
Form
of Executive Termination Pay Agreement, as amended and restated
effective
September 21, 2007
|
1. |
Termination
Payments and Benefits.
|
1.1 |
Death
or Permanent Disability.
In the event of a Separation from Service due to death, or in the
event of
a Separation from Service within 30 days following a determination
of
Permanent Disability (as defined in Section 2) of the Executive,
then as
soon as practicable or within the period required by law, but in
no event
later than 30 days after Separation from Service, the Corporation
shall
pay any (a) accrued and unpaid Base Salary (as defined in Section
2) and
vacation to which the Executive was entitled as of the effective
date of
termination of the Executive’s employment with the Corporation
(collectively, the “Compensation Payments”) and (b) the target annual
incentive (at $1.00 per unit) under the Corporation’s Management Incentive
Compensation Program (or any successor plan) for the fiscal year
in which
the date of death or the determination of Permanent Disability occurs,
prorated for the actual period of service for that fiscal year (the
“Prorated Bonus”). Notwithstanding the foregoing, if the Executive has
elected to defer under the Corporation’s Mirror Savings Plan (or any
successor plan) a portion of the annual incentive to be paid under
the
Corporation’s Management Incentive Compensation Program for the fiscal
year, then that portion of the Prorated Bonus will be deferred and
paid in
accordance with the terms of the Corporation’s Mirror Savings Plan, and
the remaining portion of the Prorated Bonus will be paid in a lump
sum
under this Section. The payment of any death benefits or disability
benefits under any employee benefit or compensation plan that is
maintained by the Corporation for the Executive’s benefit shall be
governed by the terms of such plan.
|
1.2 |
Involuntary
Separation from Service for Cause; Voluntary Separation from Service
by
the Executive.
In
the event of the Involuntary Separation from Service (as defined
in
Section 2) of the Executive for Cause (as defined in Section 2) or
voluntary Separation from Service by the Executive, the Corporation
shall
pay the Compensation Payments to the Executive as soon as practicable
or
within the period required by law, and the Executive shall be entitled
to
no other compensation, except as otherwise due to the Executive under
applicable law, applicable plan or program. The Executive shall not
be
entitled to the payment of any bonuses for any portion of the fiscal
year
in which such Separation from Service
occurs.
|
1.3 |
Involuntary
Separation from Service without
Cause.
|
(a) |
Form
and Amount
.
In the event of the Involuntary Separation from Service of the Executive
without Cause, the Corporation shall pay the Compensation Payments
to the
Executive as soon as practicable or within the period required by
law. In
addition, conditioned upon receipt of the Executive’s written release of
claims in such form as may be required by the Corporation and the
expiration of any applicable period during which the Executive can
rescind
or revoke such release, the Corporation shall pay the Executive a
lump sum
as severance pay within 14 days thereafter. In no event will severance
pay
be paid later than two and one-half months after the end of the
Executive’s tax year in which the Involuntary Separation from Service
occurs. The lump sum severance pay will be equal to (i) the Prorated
Bonus, except as provided below, (ii) the Executive’s monthly salary and
the target annual incentive (at $1.00 per unit) under the Corporation’s
Management Incentive Compensation Program for the Severance Period
(as
defined in Section 2), (iii) the Corporation’s portion of the premium cost
of Medical, Dental, and Corporation Paid Life Insurance Plans coverage
for
the Severance Period as provided in Section 1.3(b), (iv) Special
Bonus
Hours to the extent provided under Section 1.3(c), and (v) $25,000
to pay
for outplacement services and financial counseling services.
Notwithstanding the foregoing, if the Executive has elected to defer
under
the Corporation’s Mirror Savings Plan a portion of the annual incentive to
be paid under the Corporation’s Management Incentive Compensation Program
for the fiscal year, then that portion of the Prorated Bonus will
be
deferred and paid in accordance with the terms of the Corporation’s Mirror
Savings Plan, and the remaining portion of the Prorated Bonus will
be paid
in a lump sum under this Section. In addition to the lump sum payments
provided for herein, following an Involuntary Separation from Service,
the
Corporation shall also provide to the Executive Accelerated Vesting
as
provided in Section 1.3(d).
|
(b) |
Health
Care and Life Insurance
.
Following an Involuntary Separation from Service, the Executive will
receive a lump sum payment equal to the Corporation’s premium cost for the
Executive’s active Associate Medical, Dental and Life Insurance Plans
coverage, if any, as in effect on the day prior to the effective
date of
the Executive’s Involuntary Separation from Service, in an amount based on
the entire Severance Period. Such amount shall be grossed-up for
applicable federal income taxes using the applicable federal income
tax
rate that applied to the Executive for the taxable year prior to
the year
in which the Involuntary Separation from Service shall have
occurred.
|
(c) |
Special
Bonus Hours
.
Following an Involuntary Separation from Service, the Corporation
shall
pay the Executive a lump sum payment for Special Bonus Hours, if
the
Executive is a participant in the Corporation’s Paid Time Off Policy (“PTO
Policy”). Such payment shall be determined in accordance with the
provisions of the PTO Policy applicable to an involuntary termination
resulting from a reduction in
force.
|
(d)
|
Accelerated
Vesting.
Effective on the Involuntary Separation from Service date, all Long
Term
Incentive stock awards and stock options in the Executive’s name shall be
immediately vested. To the extent applicable, if the Executive has
elected
to make a deferral under the Corporation’s equity compensation plan (or
any successor plan), then such deferral will be paid in accordance
with
the terms of the Corporation’s equity compensation
plan.
|
1.4 |
Section
409A.
To the extent applicable, it is intended that portions of this Agreement
either comply with or be exempt from the provisions of Section 409A
of the
Code (as defined in Section 2). Any provision of this Agreement that
would
cause this Agreement to fail to comply with or be exempt from Code
section
409A shall have no force and effect until such provision is either
amended
to comply with or be exempt from Code section 409A (which amendment
may be
retroactive to the extent permitted by Code section 409A and the
Executive
hereby agrees not to withhold consent unreasonably to any amendment
requested by the Corporation for the purpose of either complying
with or
being exempt from Code section 409A).
|
1.5 |
Forfeiture
.
Notwithstanding the foregoing provisions of this Section 1, in addition
to
any remedies to which the Corporation is entitled, any right of the
Executive to receive termination payments and benefits under
Section 1 shall be forfeited to the extent of any amounts payable or
benefits to be provided after a breach of any covenant set forth
in
Section 3.
|
1.6 |
Non-Eligibility
For Other Company Separation Pay Benefits
.
The benefits provided for herein are intended to be in lieu of, and
not in
addition to, other separation pay benefits to which the Executive
might be
entitled, including those under the Corporation’s Separation Pay Plan, or
any successor plan or program offered by the Corporation, which the
Executive hereby waives. If the Executive receives benefits under
the
Corporation’s Change in Control Plan (the “CIC Plan”), in the event of
Employment Termination (as defined in the CIC Plan), the covenants
set
forth in Section 3 hereof shall automatically terminate and, if the
Executive shall receive all benefits to which the Executive is entitled
under the CIC Plan, the Executive waives all benefits
hereunder.
|
1.7 |
Corporation’s
Right of Offset
.
If the Executive is at any time indebted to the Corporation, or otherwise
obligated to pay money to the Corporation for any reason, to the
extent
exempt from or otherwise permitted by Code section 409A and the Treasury
Regulations thereunder, including Treasury Regulation section
1.409A-3(j)(4)(xiii) or any successor thereto, the Corporation, at
its
election, may offset amounts otherwise payable to the Executive under
this
Agreement, including, but without limitation, Base Salary and incentive
compensation payments, against any such indebtedness or amounts due
from
the Executive to the Corporation, to the extent permitted by
law.
|
1.8 |
Mitigation
.
In the event of the Involuntary Separation from Service of the Executive,
the Executive shall not be required to mitigate damages by seeking
other
employment or otherwise as a condition to receiving termination payments
or benefits under this Agreement. No amounts earned by the Executive
after
the Executive’s Involuntary Separation from Service, whether from
self-employment, as a common law employee, or otherwise, shall reduce
the
amount of any payment or benefit under any provision of this Agreement.
|
1.9 |
Resignations
.
Except to the extent requested by the Corporation, upon any termination
of
the Executive’s employment with the Corporation, the Executive shall
immediately resign all positions and directorships with the Corporation
and each of its subsidiaries and
affiliates.
|
2. |
Certain
Definitions
.
|
2.1 |
“Agreement
”
shall mean this Executive Termination Pay
Agreement.
|
2.2 |
“Base
Salary”
shall mean the Executive’s annual base salary as in effect at the
effective date of termination of the Executive’s termination of employment
with the Corporation.
|
2.3 |
“Cause”
shall mean (a) an intentional act of fraud, embezzlement, theft or
any
other material violation of law that occurs during or in the course
of
Executive’s employment with the Corporation; (b) intentional damage to the
Corporation’s assets; (c) intentional disclosure of the Corporation’s
confidential information contrary to Corporation’s policies; (d) material
breach of Executive’s obligations under this Agreement; (e) intentional
engagement in any competitive activity which would constitute a breach
of
Executive’s duty of loyalty or of Executive’s obligations under this
Agreement; (f) the willful and continued failure to substantially
perform
Executive’s duties for the Corporation (other than as a result of
incapacity due to physical or mental illness); or (g) intentional
breach
of any of Corporation’s policies or willful conduct by Executive that is
in either case demonstrably and materially injurious to Corporation,
monetarily or otherwise; provided, however, that termination for
Cause
based on clause (d) shall not be effective unless the Executive shall
have written notice from the Chief Executive Officer of the Corporation
(which notice shall include a description of the reasons and circumstances
giving rise to such notice) not less than 30 days prior to the Executive’s
termination and the Executive has failed after receipt of such notice
to
satisfactorily discharge the Executive’s duties. For purposes hereof, an
act, or a failure to act, shall not be deemed “willful” or “intentional”
unless it is done, or omitted to be done, by the Executive in bad
faith or
without a reasonable belief that the Executive’s action or omission was in
the best interest of Corporation. Failure to meet performance standards
or
objectives, by itself, does not constitute “Cause.” “Cause” also includes
any of the above grounds for dismissal regardless of whether the
Corporation learns of it before or after terminating Executive’s
employment.
|
2.4 |
“
Code
”
shall mean the Internal Revenue Code of 1986, as amended, including
proposed, temporary or final regulations or any other guidance issued
by
the Secretary of the Treasury or the Internal Revenue Service with
respect
thereto.
|
2.5 |
“
CIC
Plan
”
shall have the meaning ascribed thereto in Section
1.6.
|
2.6 |
“
Compensation
Payments
”
shall have the meaning ascribed thereto in Section
1.1.
|
2.7 |
“
Competing
Business
”
shall have the meaning ascribed thereto in
Section 3.4.
|
2.8 |
“
Corporation”
shall
mean J.C. Penney Corporation, Inc.
|
2.9 |
“
Executive
”
shall mean the undersigned member of the Corporation’s Executive
Board.
|
2.10 |
“
Involuntary
Separation from Service
”
shall mean Separation from Service due to the independent exercise
of the
unilateral authority of the Service Recipient to terminate the Executive's
services, other than due to
|
the
Executive’s implicit or explicit request, where the Executive was willing
and able to continue performing services
,
within the meaning of Code section 409A and Treasury Regulation section
1.409A-1(n)(1) or any successor thereto.
|
2.11 |
“Permanent
Disability”
means
the Executive is unable to engage in any substantial gainful activity
by
reason of any medically determinable physical or mental impairment
that
can be expected to result in death or can be expected to last for
a
continuous period of not less than 12 months
,
within the meaning of Code section 409A and Treasury Regulation section
1.409A-3(i)(4)(i)(A) or any successor thereto
.
A determination of Permanent Disability, for purposes of payment
under
this Agreement, will be made by the Corporation’s disability insurance
plan administrator or insurer.
|
2.12 |
“Proprietary
Information
”
shall have the meaning ascribed thereto in Section
3.
|
2.13 |
“Prorated
Bonus”
shall
have the meaning ascribed thereto in Section
1.1.
|
2.14 |
“
PTO
Policy
”
shall have the meaning ascribed thereto in Section
1.3.
|
2.15 |
“
Separation
from Service”
within the meaning of Code section 409A and Treasury Regulation section
1.409A-1(h) or any successor thereto,
shall
mean
the date an Executive retires, dies or otherwise has a termination
of
employment with the Service Recipient. In accordance with Treasury
Regulation section 1.409A-1(h) or any successor thereto, if an Executive
is on a period of leave that exceeds six months and the Executive
does not
retain a right to reemployment under an applicable statute or by
contract,
the employment relationship is deemed to terminate on the first date
immediately following such six-month period, and also, an Executive
is
presumed to have separated from service where the level of bona fide
services performed (whether as an employee or an independent contractor)
decreases to a level equal to 20 percent or less of the average level
of
services performed (whether as an employee or an independent contractor)
by the Executive during the immediately preceding 36-month period
(or the
full period of service to the Service Recipient if the employee has
been
providing services for less than the 36-month period).
|
2.16
|
“Service
Recipient” shall mean the person, within the meaning of Treasury
Regulation section
1.409A-1(g)
or any successor thereto,
for whom the services are performed and with respect to whom the
legally
binding right to compensation arises, and all persons with whom such
person would be considered a single employer under Code section 414(b)
(employees of controlled group of corporations), and all persons
with whom
such person would be considered a single employer under Code section
414(c) (employees of partnerships, proprietorships, etc., under common
control), using the “at least 50 percent” ownership standard,
|
|
within
the meaning of Code section 409A and Treasury Regulation section
1.409A-1(h)(3) or any successor
thereto.
|
2.17
|
“
Severance
Period
”
shall mean the following period, based on the Executive’s title at the
time of termination of the Executive’s employment with the
Corporation:
|
3. |
Covenants
and Representations of the Executive
.
The Executive hereby acknowledges that the Executive’s duties to the
Corporation require access to and creation of the Corporation’s
confidential or proprietary information and trade secrets (collectively,
the “Proprietary Information”). The Proprietary Information has been and
will continue to be developed by the Corporation and its subsidiaries
and
affiliates at substantial cost and constitutes valuable and unique
property of the Corporation. The Executive further acknowledges that
due
to the nature of the Executive’s position, the Executive will have access
to Proprietary Information affecting plans and operations in every
location in which the Corporation (and its subsidiaries and affiliates)
does business or plans to do business throughout the world, and the
Executive’s decisions and recommendations on behalf of the Corporation may
affect its operations throughout the world. Accordingly, the Executive
acknowledges that the foregoing makes it reasonably necessary for
the
protection of the Corporation’s business interests that the Executive
agree to the following covenants:
|
3.1 |
Confidentiality
.
The Executive hereby covenants and agrees that the Executive shall
not,
without the prior written consent of the Corporation, during the
Executive’s employment with the Corporation or at any time thereafter
disclose to any person not employed by the Corporation, or use in
connection with engaging in competition with the Corporation, any
Proprietary Information of the
Corporation.
|
(a) |
It
is expressly understood and agreed that the Corporation’s Proprietary
Information is all nonpublic information relating to the Corporation’s
business, including but not limited to information, plans and strategies
regarding suppliers, pricing, marketing, customers, hiring and
terminations, employee performance and evaluations, internal reviews
and
investigations, short term and long range plans, acquisitions and
divestitures, advertising, information systems, sales objectives
and
performance, as well as any other nonpublic information, the nondisclosure
of which may provide a competitive or economic advantage to the
Corporation. Proprietary Information shall not be deemed to have
become
public for purposes of this Agreement where it has been disclosed
or made
public by or through anyone acting in violation of
a
|
contractual,
ethical, or legal responsibility to maintain its
confidentiality.
|
(b) |
In
the event the Executive receives a subpoena, court order or other
summons
that may require the Executive to disclose Proprietary Information,
on
pain of civil or criminal penalty, the Executive will promptly give
notice
to the Corporation of the subpoena or summons and provide the Corporation
an opportunity to appear at the Corporation’s expense and challenge the
disclosure of its Proprietary Information, and the Executive shall
provide
reasonable cooperation to the Corporation for purposes of affording
the
Corporation the opportunity to prevent the disclosure of the Corporation’s
Proprietary Information.
|
3.2 |
Nonsolicitation
of Employees
.
The Executive hereby covenants and agrees that during the Executive’s
employment with the Corporation and for a period equal to the Severance
Period thereafter, the Executive shall not, without the prior written
consent of the Corporation, on the Executive’s own behalf or on the behalf
of any person, firm or company, directly or indirectly, attempt to
influence, persuade or induce, or assist any other person in so persuading
or inducing, any of the employees of the Corporation (or any of its
subsidiaries or affiliates) to give up his or her employment with
the
Corporation (or any of its subsidiaries or affiliates), and the Executive
shall not directly or indirectly solicit or hire employees of the
Corporation (or any of its subsidiaries or affiliates) for employment
with
any other employer.
|
3.3 |
Noninterference
with Business Relations.
The
Executive hereby covenants and agrees that during the Executive’s
employment with the Corporation and for a period equal to the Severance
Period thereafter, the Executive shall not, without the prior written
consent of the Corporation, on the Executive’s own behalf or on the behalf
of any person, firm or company, directly or indirectly, attempt to
influence, persuade or induce, or assist any other person in so persuading
or inducing, any person, firm or company to cease doing business
with,
reduce its business with, or decline to commence a business relationship
with, the Corporation (or any of its subsidiaries or
affiliates).
|
3.4 |
Noncompetition
.
|
(a) |
The
Executive covenants that during the Executive’s employment with the
Corporation and, in the event the Executive will receive or has received
the severance benefits provided for in Section 1.3, for a period
equal to
the Severance Period thereafter, the Executive will not undertake
work for
a Competing Business, as defined in Section 3.4(b). For purposes
of this
covenant, “undertake work for” shall include performing services, whether
paid or unpaid, in any capacity, including as an officer, director,
owner,
consultant,
|
employee,
agent or representative, where such services involve the performance
of
similar duties or oversight responsibilities as those performed by
the
Executive at any time during the 12-month period preceding the Executive’s
termination from the Corporation for any reason. Notwithstanding
the
foregoing, the Executive may waive the benefits under Section 1.3
by
providing a written notice to the Corporation’s General Counsel and will
then not be subject to this
Section 3.4.
|
(b) |
As
used in this Agreement, the term “Competing Business” shall mean any
business that, at the time of the
determination:
|
(i)
|
operates
(A) any retail department store, specialty store, or general merchandise
store; (B) any retail catalog, telemarketing, or direct mail business;
(C)
any Internet-based or other electronic department store or general
merchandise retailing business; (D) any other retail business that
sells
goods, merchandise, or services of the types sold by the Corporation,
including its divisions, affiliates, and licensees; or (E) any business
that provides buying office or sourcing services to any business
of the
types referred to in this Section 3.4(b)(i);
and
|
(ii)
|
conducts
any business of the types referred to in Section 3.4(b)(i) in the
United States, Commonwealth of Puerto Rico, or another country in
which
the Corporation, including its divisions, affiliates, and licensees,
conducts a similar business.
|
3.5 |
Injunctive
Relief.
If the Executive shall breach any of the covenants contained in this
Section 3, the Corporation shall have no further obligation to make
any
payment to the Executive pursuant to this Agreement and may recover
from
the Executive all such damages as it may be entitled to at law or
in
equity. In addition, the Executive acknowledges that any such breach
is
likely to result in immediate and irreparable harm to the Corporation
for
which money damages are likely to be inadequate. Accordingly, the
Executive consents to injunctive and other appropriate equitable
relief
without the necessity of bond in excess of $500.00 upon the institution
of
proceedings therefor by the Corporation in order to protect the
Corporation’s rights hereunder.
|
4. |
Employment-at-Will
.
Notwithstanding any provision in this Agreement to the contrary,
the
Executive hereby acknowledges and agrees that the Executive’s employment
with the Corporation is for an unspecified duration and constitutes
“at-will” employment, and the Executive further acknowledges and agrees
that this employment relationship may be terminated at any time,
with or
without Cause or for any or no Cause, at the option either of the
Corporation or the Executive.
|
5. |
Miscellaneous
Provisions
.
|
5.1 |
Dispute
Resolution.
Any dispute between the parties under this Agreement shall be resolved
(except as provided below) through informal arbitration by an arbitrator
selected under the rules of the American Arbitration Association
for
arbitration of employment disputes (located in the city in which
the
Corporation’s principal executive offices are based) and the arbitration
shall be conducted in that location under the rules of said Association.
Each party shall be entitled to present evidence and argument to
the
arbitrator. The arbitrator shall have the right only to interpret
and
apply the provisions of this Agreement and may not change any of
its
provisions, except as expressly provided in Section 3.4 and only
in the
event the Corporation has not brought an action in a court of competent
jurisdiction to enforce the covenants in Section 3. The arbitrator
shall
permit reasonable pre-hearing discovery of facts, to the extent necessary
to establish a claim or a defense to a claim, subject to supervision
by
the arbitrator. The determination of the arbitrator shall be conclusive
and binding upon the parties and judgment upon the same may be entered
in
any court having jurisdiction thereof. The arbitrator shall give
written
notice to the parties stating the arbitrator’s determination, and shall
furnish to each party a signed copy of such determination. The expenses
of
arbitration shall be borne equally by the Corporation and the Executive
or
as the arbitrator equitably determines consistent with the application
of
state or federal law; provided, however, that the Executive’s share of
such expenses shall not exceed the maximum permitted by law. To the
extent
applicable, in accordance with Code section 409A and Treasury Regulation
section 1.409A-3(i)(1)(iv)(A)
or any successor thereto
,
any payments or reimbursement of arbitration expenses which the
Corporation is required to make under the foregoing provision shall
meet
the requirements below. The Corporation shall reimburse the Executive
for
any such expenses, promptly upon delivery of reasonable documentation,
provided, however, all invoices for reimbursement of expenses must
be
submitted to the Corporation and paid in a lump sum payment by the
end of
the calendar year following the calendar year in which the expense
was
incurred. All expenses must be incurred within a 20 year period following
the Separation from Service. The amount of expenses paid or eligible
for
reimbursement in one year under this Section 5.1 shall not affect
the
expenses paid or eligible for reimbursement in any other taxable
year. The
right to payment or reimbursement under this
|
5.2 |
Binding
on Successors; Assignment
.
This Agreement shall be binding upon and inure to the benefit of
the
Executive, the Corporation and each of their respective successors,
assigns, personal and legal representatives, executors, administrators,
heirs, distributees, devisees, and legatees, as applicable; provided
however, that neither this Agreement nor any rights or obligations
hereunder shall be assignable or otherwise subject to hypothecation
by the
Executive (except by will or by operation of the laws of intestate
succession) or by the Corporation except that the Corporation may
assign
this Agreement to any successor (whether by merger, purchase or otherwise)
to all or substantially all of the stock, assets or businesses of
the
Corporation, if such successor expressly agrees to assume the obligations
of the Corporation hereunder.
|
5.3 |
Governing
Law
.
This
Agreement shall be governed, construed, interpreted, and enforced
in
accordance with the substantive law of the State of Texas and federal
law,
without regard to conflicts of law principles, except as expressly
provided herein. In the event the Corporation exercises its discretion
under Section 5.1 to bring an action to enforce the covenants contained
in
Section 3 in a court of competent jurisdiction where the Executive
has
breached or threatened to breach such covenants, and in no other
event,
the parties agree that the court may apply the law of the jurisdiction
in
which such action is pending in order to enforce the covenants to
the
fullest extent
permissible.
|
5.4 |
Severability
.
Any provision of this Agreement that is deemed invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction,
be
ineffective, to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions
hereof in such jurisdiction or rendering that or any other provisions
of
this Agreement invalid, illegal or unenforceable in any other
jurisdiction. If any covenant in Section 3 should be deemed invalid,
illegal or unenforceable because its time, geographical area, or
restricted activity, is considered excessive, such covenant shall
be
modified to the minimum extent necessary to render the modified covenant
valid, legal and enforceable.
|
5.5 |
Notices
.
For all purposes of this Agreement, all communications required or
permitted to be given hereunder shall be in writing and shall be
deemed to
have been duly given when hand delivered or dispatched by electronic
facsimile transmission (with receipt thereof confirmed), or five
business
days after having been mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or three business
days
after having been sent by a nationally recognized overnight courier
service, addressed to the Corporation at its principal executive
office,
c/o the Corporation’s General Counsel, and to the Executive at the
Executive’s principal residence, or to such other address as any party may
have furnished to the other in writing and in accordance herewith,
except
that notices of change of address shall be effective only upon
receipt.
|
5.6 |
Counterparts
.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same
Agreement.
|
5.7 |
Entire
Agreement
.
The terms of this Agreement are intended by the parties to be the
final
expression of their agreement with respect to the Executive’s employment
by the Corporation and may not be contradicted by evidence of any
prior or
contemporaneous agreement. The parties further intend that this Agreement
shall constitute the complete and exclusive statement of its terms
and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceedings to vary the terms of this
Agreement.
|
5.8 |
Amendments;
Waivers.
This Agreement may not be modified, amended, or terminated except
by an
instrument in writing, approved by the Corporation and signed by
the
Executive and the Corporation. Failure on the part of either party
to
complain of any action or omission, breach or default on the part
of the
other party, no matter how long the same may continue, shall never
be
deemed to be a waiver of any rights or remedies hereunder, at law
or in
equity. The Executive or the Corporation may waive compliance by
the other
party with any provision of this Agreement that such other party
was or is
obligated to comply with or perform only through an executed writing;
provided, however, that such waiver shall not
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5.9 |
No
Inconsistent Actions
.
The parties hereto shall not voluntarily undertake or fail to undertake
any action or course of action that is inconsistent with the provisions
or
essential intent of this Agreement. Furthermore, it is the intent
of the
parties hereto to act in a fair and reasonable manner with respect
to the
interpretation and application of the provisions of this
Agreement.
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5.10 |
Headings
and Section References
.
The headings used in this Agreement are intended for convenience
or
reference only and shall not in any manner amplify, limit, modify
or
otherwise be used in the construction or interpretation of any provision
of this Agreement. All section references are to sections of this
Agreement, unless otherwise noted.
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5.11 |
Beneficiaries
.
The Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries
to
receive any compensation or benefit payable hereunder following the
Executive’s death, and may change such election, in either case by giving
the Corporation written notice thereof in accordance with Section
5.5. In
the event of the Executive’s death or a judicial determination of the
Executive’s incompetence, reference in this Agreement to the “Executive”
shall be deemed, where appropriate, to be the Executive’s beneficiary,
estate or other legal
representative.
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5.12 |
Withholding
.
The Corporation shall be entitled to withhold from payment any amount
of
withholding required by law.
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