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Exhibit 10.17
AMENDED & RESTATED
EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement (the “
Agreement
”), entered into and effective as of December 6, 2007
(the “ Effective
Date ”), is by and between Orthofix Inc., a
Minnesota corporation (the “ Company
”), and Michael M. Finegan, an individual (the “
Executive
”).
PRELIMINARY STATEMENTS
A. The
Company and the Executive are parties to an Employment
Agreement, entered into as of July 13, 2006 (the “
Prior
Agreement ”) and effective as of April 1, 2006
(the “ Prior Agreement
Effective Date ”), but desire to amend and
restate the Prior Agreement in its entirety to memorialize the
terms of their relationship in order to retain the continued
services of the Executive.
B. The
Executive desires to render such services, upon the terms and
conditions contained herein.
C. The
Company and the Executive agree and acknowledge that pursuant
to this Agreement the Executive will receive consideration and
other benefits over and above that which he was entitled to
receive under the Prior Agreement and over and above that
which he would otherwise be entitled to receive as
compensation for services performed for the
Company.
D. The
Company is a subsidiary of Orthofix International N.V., a
corporation organized under the laws of the Netherlands
Antilles (the “ Parent
”) for whom Executive will also perform services as
contemplated hereby, and under certain compensation plans of
which Executive shall be eligible to receive compensation, and
Parent is agreeing to provide such compensation and guarantee
the Company’s payment obligations
hereunder.
E. Capitalized
terms used herein and not otherwise defined have the meaning
for them set forth on Exhibit A
attached hereto and incorporated herein by
reference.
The
parties, intending to be legally bound, hereby agree and the
Prior Agreement is hereby amended and restated as
follows:
I. EMPLOYMENT
AND DUTIES
1 .
1
Duties
. The Company hereby employs the Executive as an
employee, and the Executive agrees to be employed by the Company,
upon the terms and conditions set forth herein. While
serving as an employee of the Company, the Executive shall serve as
Vice President of Corporate Development of the Company, and be
appointed to serve as Vice President of Corporate Development of
the Parent. The Executive shall have such power and
authority and perform such duties, functions and responsibilities
as are associated with and incident to such positions, and as the
Board may from time to time require of him; provided ,
however , that
such authority, duties, functions and responsibilities are
commensurate with the power, authority, duties, functions and
responsibilities generally performed by vice presidents of
corporate development of companies
which are similar in size and nature to, and the financial position
of, the Parent Group. The Executive also agrees to
serve, if elected, as an officer or director of any other direct or
indirect subsidiary of the Parent, in each such case at no
compensation in addition to that provided for in this Agreement,
but the Executive serves in such positions solely as an
accommodation to the Company and such positions shall grant him no
rights hereunder (including for purposes of the definition of Good
Reason).
Exhibit 10.17
1 .
2
Services
. During the Term (as defined in Section 1.3), and
excluding any periods of vacation, sick leave or disability, the
Executive agrees to devote his full business time, attention and
efforts to the business and affairs of the
Company. During the Term, it shall not be a violation of
this Section 1.2 for the Executive to (a) serve on civic or
charitable boards or committees (but not corporate boards), (b)
deliver lectures or fulfill speaking engagements or (c) manage
personal investments, so long as such activities do not interfere
with the performance of the Executive’s responsibilities in
accordance with this Agreement. The Executive must
request the Board’s prior written consent to serve on a
corporate board, which consent shall be at the Board’s
reasonable discretion and only so long as such service does not
interfere with the performance of his responsibilities
hereunder.
1 .
3
Term of
Employment . The term of this Agreement shall
commence on the Effective Date and shall continue until 11:59 p.m.
Eastern Time on April 1, 2009 (the “ Initial Term
”) unless sooner terminated or extended as provided
hereunder. This Agreement shall automatically renew for
additional one-year periods on each of the third and fourth
anniversaries of the Prior Agreement Effective Date (each such
extension, the “ Renewal Term
”) unless either party gives the other party written notice
of its or his election not to extend such employment at least 180
days prior to the third and fourth anniversaries of the Prior
Agreement Effective Date, respectively. Further, if a
Change of Control occurs when less than two full years remain in
the Initial Term or during any Renewal Term, this Agreement shall
automatically be extended for two years only from the Change of
Control Date and thereafter shall terminate on the second
anniversary of the Change of Control Date in accordance with its
terms. The Initial Term, together with any Renewal Term
or extension as a result of a Change of Control, are collectively
referred to herein as the “ Term
.” In the event that the Executive continues to be
employed by the Company after the Term, unless otherwise agreed by
the parties in writing, such continued employment shall be on an
at-will, month-to-month basis upon terms agreed upon at such time
without regard to the terms and conditions of this Agreement and
this Agreement shall be deemed terminated at the end of the Term,
regardless of whether such employment continues at-will, other than
Articles VI and VII, which shall survive the termination or
expiration of this Agreement for any reason.
II. COMPENSATION
2 .
1
General .
The
base salary and Incentive Compensation (as defined in Section 2.3.)
payable to the Executive hereunder, as well as any stock-based
compensation, including stock options, stock appreciation rights
and restricted stock grants, shall be determined from time to time
by the Board and paid pursuant to the Company’s customary
payroll practices or in accordance with the terms of the applicable
stock-based Plans (as defined in Section 2.4). The
Company shall pay the Executive in cash, in accordance with the
normal payroll practices of the Company, the base salary and
Incentive Compensation set forth below. For the
avoidance of doubt, in providing any compensation payable in stock,
the Company may withhold, deduct or collect from the
compensation otherwise payable or issuable to the Executive a
portion of such compensation to the extent required to comply with
applicable tax laws to the extent such withholding is not made or
otherwise provided for pursuant to the agreement governing such
stock-based compensation.
Exhibit 10.17
2 .2
Base Salary
. The Executive shall be paid a base salary of no less
than $20,416.66 per month ($245,000 on an annualized basis) while
he is employed by the Company during the Term; provided ,
however , that
nothing shall prohibit the Company from reducing the base salary as
part of an overall cost reduction program that affects all senior
executives of the Parent Group and does not disproportionately
affect the Executive, so long as such reductions do not reduce the
base salary to a rate that is less than 90% of the minimum base
salary amount set forth above (or, if the minimum base salary
amount has been increased during the Term, 90% of such increased
amount). The base salary shall be reviewed annually by
the Board for increase (but not decrease, except as permitted
above) as part of its annual compensation review, and any increased
amount shall become the base salary under this
Agreement.
2 .3
Bonus or other
Incentive Compensation . With respect to each
fiscal year of the Company during the Term, the Executive shall be
eligible to receive annual bonus compensation in an amount based on
reasonable goals for the earning of such compensation as may be
determined by the Board from time to time (the “ Goals
”). Amounts that may be earned upon attainment of
all reasonably achievable annual Goals will be targeted to equal
not less than 40% of the annual base salary in such fiscal
year. The amount of any actual payment under the Bonus
Plan will depend upon the achievement (or not) of the various
performance metrics comprising the Goals, with an opportunity to
earn maximum annual bonus compensation of not less than 60% of
annual base salary in such fiscal year under Parent’s
Executive Annual Incentive Plan or any successor plan or as may be
determined by the Board from time-to-time (the “ Bonus Plan
”). Amounts will be less than either such target
if the Goals are not met as set forth under the terms of the
plan. Amounts payable under the Bonus Plan shall be
determined by the Board and shall be payable following such fiscal
year and no later than two and one-half months after the end of
such fiscal year. In addition, the Executive shall be
eligible to receive such additional bonus or incentive compensation
as the Board may establish from time to time in its sole
discretion. Any bonus or incentive compensation under
this Section 2.3 under the Bonus Plan or otherwise is referred to
herein as “ Incentive
Compensation .” Stock-based compensation
shall not be considered Incentive Compensation under the terms of
this Agreement unless the parties expressly agree otherwise in
writing.
2 .4
Stock
Compensation . The Executive shall be eligible to
receive stock-based compensation, whether stock options, stock
appreciation rights, restricted stock grants or otherwise, under
the Parent’s Amended and Restated 2004 Long Term Incentive
Plan (the “ LTIP ”)
or other stock-based compensation plans as Parent may establish
from time to time (collectively, the “ Plans
”). The Executive shall be considered for such
grants no less often than annually as part of the Board’s
annual compensation review, but any such grants shall be at the
sole discretion of the Board.
Exhibit 10.17
III. EMPLOYEE
BENEFITS
3 .
1
General
. Subject only to any post-employment rights under
Article V, so long as the Executive is employed by the Company
pursuant to this Agreement, he shall be eligible for the following
benefits to the extent generally available to senior executives of
the Company or by virtue of his position, tenure, salary and other
qualifications. Any eligibility shall be subject to and
in accordance with the terms and conditions of the Company’s
benefits policies and applicable plans (including as to
deductibles, premium sharing, co-payments or other cost-splitting
arrangements).
3 .2
Savings and
Retirement Plans . The Executive shall be
entitled to participate in, and enjoy the benefits of, all savings,
pension, salary continuation and retirement plans, practices,
policies and programs available to senior executives of the
Company.
3.3
Welfare
and Other Benefits . The Executive and/or the
Executive’s eligible dependents, as the case may be, shall be
entitled to participate in, and enjoy the benefits of, all welfare
benefit plans, practices, policies and programs provided by the
Company (including without limitation, medical, prescription, drug,
dental, disability, salary continuance, group life, dependent life,
accidental death and travel accident insurance plans and programs)
and other benefits (including, without limitation, executive
physicals and tax and financial planning assistance) at a level
that is available to other senior executives of the
Company.
3.4
Vacation
. The Executive shall be entitled to 4 weeks paid
vacation per 12-month period.
3.5
Expenses
. The Executive shall be entitled to receive prompt
reimbursement for all reasonable business-related expenses incurred
by the Executive in performing his duties under this
Agreement. Reimbursement of the Executive for such
expenses will be made upon presentation to the Company of expense
vouchers that are in sufficient detail to identify the nature of
the expense, the amount of the expense, the date the expense was
incurred and to whom payment was made to incur the expense, all in
accordance with the expense reimbursement practices, policies and
procedures of the Company.
3.6
Key Man
Insurance . The Company shall be entitled to
obtain a “key man” or similar life or disability
insurance policy on the Executive, and neither the Executive nor
any of his family members, heirs or beneficiaries shall be entitled
to the proceeds thereof. Such insurance shall be
available to offset any payments due to the Executive pursuant to
Section 5.1 of this Agreement due to his death or
Disability.
IV. TERMINATION
OF EMPLOYMENT
4 .
1
Termination by Mutual
Agreement . The Executive’s employment may
be terminated at any time during the Term by mutual written
agreement of the Company and the Executive.
4 .2
Death
. The Executive’s employment hereunder shall
terminate upon his death.
Exhibit 10.17
4.3
Disability
. In the event the Executive incurs a Disability for a
continuous period exceeding 90 days or for a total of 180 days
during any period of 12 consecutive months, the Company may, at its
election, terminate the Executive’s employment during the
Term by delivering a Notice of Termination (as defined in Section
4.8) to the Executive 30 days in advance of the date of
termination.
4.4
Good
Reason . The Executive may terminate his employment at any
time during the Term for Good Reason by delivering a Notice of
Termination to the Company 30 days in advance of the date of
termination; provided ,
however , that
the Executive agrees not to terminate his employment for Good
Reason until the Executive has given the Company at least 30
days’ in which to cure the circumstances set forth in the
Notice of Termination constituting Good Reason and if such
circumstances are not cured by the 30 th
day, the Executive’s employment shall terminate on such
date. If the circumstances constituting Good Reason are
remedied within the cure period to the reasonable satisfaction of
the Executive, such event shall no longer constitute Good Reason
for purposes of this Agreement and the Executive shall thereafter
have no further right hereunder to terminate his employment for
Good Reason as a result of such event. Unless
the Executive provides written notification of an event described
in the definition of Good Reason within 90 days after the Executive
has actual knowledge of the occurrence of any such
event, the Executive shall be deemed to have consented thereto and
such event shall no longer constitute Good Reason for purposes of
this Agreement.
4.5
Termination without
Cause . The Company may terminate the Executive’s
employment at any time during the Term without Cause by delivering
to the Executive a Notice of Termination 30 days in advance of the
date of termination; provided that as part of such notice the
Company may request that the Executive immediately tender the
resignations contemplated by Section 4.9 and otherwise cease
performing his duties hereunder. The Notice of
Termination need not state any reason for termination and such
termination can be for any reason or no reason. The date
of termination shall be the date set forth in the Notice of
Termination.
4.6
Cause . The
Company may terminate the Executive’s employment at any time
during the Term for Cause by delivering a Notice of Termination to
the Executive. The Notice of Termination shall include 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 such purpose, finding that
in the good faith opinion of the Board an event constituting Cause
has occurred and specifying the particulars thereof. A
Notice of Termination for Cause may not be delivered unless in
conjunction with such Board meeting the Executive was given
reasonable notice and the opportunity for the Executive, together
with the Executive’s counsel, to be heard before the Board
prior to such vote. If the event constituting Cause for
termination is other than as a result of a breach or violation by
the Executive of any provision of Article VI and only if the event
constituting Cause is curable, then the Executive shall have 30
days from the date of the Notice of Termination to cure such event
described therein to the reasonable satisfaction of the Board in
its sole discretion and, if such event is cured by the Executive
within the cure period, such event shall no longer constitute Cause
for purposes of this Agreement and the Company shall thereafter
have no further right to terminate the Executive’s employment
for Cause as a result of such event. The Executive shall
have no other rights under this Agreement to cure an event that
constitutes Cause. Unless the Company provides written
notification of an event described in the definition of Cause
within 90 days after the Company knows or has reason to know of the
occurrence of any such event, the Company may not terminate the
Executive for Cause unless such event is recurring or
uncurable. Knowledge shall mean actual knowledge of the
Board or the Company’s senior executives.
Exhibit 10.17
4.7
Voluntary
Termination . The Executive may voluntarily
terminate his employment at any time during the Term by delivering
to the Company a Notice of Termination 30 days in advance of the
date of termination (a “ Voluntary
Termination ”). For purposes of this Agreement, a
Voluntary Termination shall not include a termination of the
Executive’s employment by reason of death or for Good Reason,
but shall include voluntary termination upon retirement in
accordance with the Company’s retirement policies. A
Voluntary Termination shall not be considered a breach or other
violation of this Agreement.
4.8
Notice of
Termination . Any termination of employment under
this Agreement by the Company or the Executive requiring a notice
of termination shall require delivery of a written notice by one
party to the other party (a “ Notice of
Termination ”). A Notice of Termination must indicate
the specific termination provision of this Agreement relied upon
and the date of termination. It must also set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
such termination, other than in the event of a Voluntary
Termination or termination without Cause. The date of
termination specified in the Notice of Termination shall comply
with the time periods required under this Article IV, and may in no
event be earlier than the date such Notice of Termination is
delivered to or received by the party getting the
notice. If the Executive fails to include a date of
termination in any Notice of Termination he delivers, the Company
may establish such date in its sole discretion. No
Notice of Termination under Section 4.4 or 4.6 shall be effective
until the applicable cure period, if any, shall have expired
without the Company or the Executive, respectively, having
corrected the event or events subject to cure to the reasonable
satisfaction of the other party. The terms
“termination” and “termination of
employment,” as used herein are intended to mean a
termination of employment which constitutes a “separation
from service” under Section 409A.
4.9
Resignations
. Upon ceasing to be an employee of the Company for any
reason, or earlier upon request by the Company pursuant to Section
4.5, the Executive agrees to immediately tender written
resignations to the Company with respect to all officer and
director positions he may hold at that time with any member of the
Parent Group.
V. PAYMENTS
ON TERMINATION
5. 1
Death; Disability;
Resignation for Good Reason; Termination without Cause
. If at any time during the Term the Executive’s
employment with the Company is terminated pursuant to Section 4.2,
4.3, 4.4 or 4.5, the Executive shall be entitled to the following
only:
(a) any
unpaid base salary and accrued unpaid vacation then owing through
the date of termination or Incentive Compensation that is as of
such date actually earned or owing under Article II, but not yet
paid to the Executive, which amounts shall be paid to the Executive
within 30 days of the date of termination; provided, however, the
Executive shall be entitled to receive the pro rata amount of any
Bonus Plan Incentive Compensation for the fiscal year of his
termination of employment (based on the number of business days he
was actually employed by the Company during the fiscal year in
which the termination of employment occurs) that he would have
received had his employment not been terminated during such year.
Nothing in the foregoing sentence is intended to give the Executive
greater rights to such Incentive Compensation than a pro rata
portion of what he would ordinarily be entitled to under the Bonus
Plan Incentive Compensation that would have been applicable to him
had his employment not been terminated, it being understood that
Executive’s termination of employment shall not be used to
disqualify Executive from or make him ineligible for a pro rata
portion of the Bonus Plan Incentive Compensation to which he would
otherwise have been entitled. The pro rata portion of
Bonus Plan Incentive Compensation shall, subject to Section
7.16, be paid at the time such Incentive Compensation is
paid to senior executives of the Company (“ Severance Bonus
Payment Date ”).
Exhibit 10.17
(b) a
one-time lump sum severance payment in an amount equal to 100%
of the Executive’s Base Amount. The lump sum
severance payment shall be paid within 30 days after the date
of termination, subject, in the case of termination other than
as a result of the Executive’s death, to Section
7.16.
(c) all
stock options, stock appreciation rights or similar
stock-based rights previously granted to the Executive shall
vest in full and be immediately exercisable and any risk of
forfeiture included in restricted or other stock grants
previously made to the Executive shall immediately
lapse. In addition, if the Executive’s
employment is terminated pursuant to Section 4.4 or 4.5, the
Executive shall have until the latest date that each stock
option or stock appreciation right would otherwise expire by
its original terms had the Executive’s employment not
terminated (but in no event later than 10 years from the
original grant date of the stock option or stock appreciation
right) to exercise any outstanding stock options or stock
appreciation rights. The vesting and extension of
the exercise period set forth in this Section 5.1(c) shall
occur notwithstanding any provision in any Plans or related
grant documents which provides for a lesser vesting or shorter
period for exercise upon termination by the Company without
Cause (which for this purpose shall include a termination by
the Executive for Good Reason), notwithstanding anything to
the contrary in any Plans or grant documents; provided,
however , and for the avoidance of doubt, nothing in
this Agreement shall be construed as or imply that this
Agreement does or can grant greater rights than are allowed
under the terms and conditions of the Plans.
(d) to
the fullest extent permitted by the Company’s
then-current benefit plans, continuation of coverage
(including family coverage) under basic employee group
benefits that are welfare benefits (such as group health and
group life benefits), but not pension, retirement,
profit-sharing, severance or similar compensatory benefits,
for the Executive and the Executive’s eligible
dependents substantially similar to coverage they were
receiving or which they were entitled to immediately prior to
the termination of the Executive’s employment for the
lesser of 12 months after termination or until the Executive
secures coverage from new employment and the period of COBRA
health care continuation coverage provided under Section 4980B
of the Code shall run concurrently with the foregoing 12 month
period. In order to receive such benefits, the
Executive or his eligible dependents must continue to make any
required co-payments, deductibles, premium sharing or other
cost-splitting arrangements the Executive was otherwise paying
immediately prior to the date of termination and nothing
herein shall require the Company to be responsible for such
items. If Executive is a “specified
employee” under Section 409A, the full cost of the
continuation or provision of employee group welfare benefits
(other than medical or dental benefits) shall be paid by
Executive until the earliest to occur of (i) Executive’s
death or (ii) the first day of the seventh month following
Executive’s termination of employment, and such cost
shall be reimbursed by the Company to, or on behalf of,
Executive in a lump sum cash payment on the earlier to occur
of Executive’s death or the first day of the seventh
month following Executive’s termination of employment,
except that, as provided above, Executive shall not receive
reimbursement for any required co-payments, deductibles,
premium sharing or other cost-splitting arrangements the
Executive was otherwise paying immediately prior to the date
of termination.
Exhibit 10.17
(e) payment
or reimbursement to the Executive of the costs and expenses of
any executive outplacement firm selected by the Executive in
an amount not to exceed $25,000 during the 24-month period
following his date of termination. The Executive
shall provide the Company with reasonable documentation of
such costs and expenses.
In
the event the Executive’s termination is pursuant to
Section 4.2, in lieu of a lump sum payment, the
Executive’s heirs, beneficiaries, or personal
representatives, as applicable, shall receive (i)
salary-related portions of the Base Amount on regular payroll
dates of the Company until the first anniversary of the date
of termination of the Executive and (ii) Incentive
Compensation-related portions of the Base Amount on the dates
that such Incentive Compensation is actually paid by the
Company to its senior executives. Further, any
payments by the Company under Section 5.1(b) above pursuant to
a termination under Section 4.2 or 4.3 shall be reduced by any
payments received by the Executive pursuant to any of the
Company’s employee welfare benefit plans providing for
payments in the event of death or Disability.
5.2
Termination for
Cause; Voluntary Termination . If at any time
during the Term the Executive’s employment with the Company
is terminated pursuant to Section 4.6 or 4.7, the Executive shall
be entitled to only the following:
(a) any
unpaid base salary and accrued unpaid vacation then owing
through the date of termination or Incentive Compensation that
is as of such date actually earned or owing under Article II,
but not yet paid to the Executive, which amounts shall be paid
to the Executive within 30 days of the date of
termination. Nothing in this provision is intended
to imply that the Executive is entitled to any partial or pro
rata payment of Incentive Compensation on termination unless
the Bonus Plan expressly provides as much under its specific
terms.
(b) whatever
rights, if any, that are available to the Executive upon such
a termination pursuant to the Plans or any award documents
related to any stock-based compensation such as stock options,
stock appreciation rights or restricted stock grants. This
Agreement does not grant any greater rights with respect to
such items than provided for in the Plans or the award
documents in the event of any termination for Cause or a
Voluntary Termination.
Exhibit 10.17
5.3
Termination following
Change of Control . The Executive shall have no
specific right to terminate this Agreement or right to any
severance payments or other benefits solely as a result of a Change
of Control or Potential Change of Control. However, if
during a Change of Control Period during the Term, (a) the
Executive terminates his employment with the Company pursuant to
Section 4.4, or (b) the Company terminates the Executive’s
employment pursuant to Section 4.5, the lump sum severance payment
under Section 5.1 shall be increased from 100% of the Base Amount
to 150% times the Base Amount and the period for continuation of
benefits under Section 5.1 shall be increased to 18 months from 12
months. The terms and rights with respect to such
payments shall otherwise be governed by Section 5.1. No
other rights result from termination during a Change of Control
Period; provided ,
however , that
nothing in this Section 5.3 is intended to limit or impair the
rights of the Executive under the Plans or any documents evidencing
any stock-based compensation awards in the event of a Change of
Control if such Plans or award documents grant greater rights than
are set forth herein.
5.4
Release
. The Company’s obligation to pay or provide any
benefits to the Executive following termination (other than in the
event of death pursuant to Section 4.2) is expressly subject to the
requirement that he execute and not breach or rescind a release
relating to employment matters and the circumstances surrounding
his termination in favor of the members of the Parent Group and
their officers, directors and related parties and agents, in a form
acceptable to the Company at the time of termination of
employment.
5.5
Other
Benefits . Except as expressly provided otherwise
in this Article V, the provisions of this Agreement shall not
affect the Executive’s participation in, or terminating
distributions and vested rights under, any pension, profit-sharing,
insurance or other employee benefit plan of the Parent Group to
which the Executive is entitled pursuant to the terms of such
plans, or expense reimbursements he is otherwise entitled to under
Section 3.5.
5.6
No
Mitigation . It will be difficult, and may be
impossible, for the Executive to find reasonably comparable
employment following the termination of the Executive’s
employment, and the protective provisions under Article VI
contained herein will further limit the employment opportunities
for the Executive. In addition, the Company’s
severance pay policy applicable in general to its salaried
employees does not provide for mitigation, offset or reduction of
any severance payment received thereunder. Accordingly,
the parties hereto expressly agree that the payment of severance
compensation in accordance with the terms of this Agreement will be
liquidated damages, and that the Executive shall not be required to
seek other employment, or otherwise, to mitigate any payment
provided for hereunder.
5.7
Limitation; No Other
Rights . Any amounts due or payable under this
Article V are in the nature of severance payments or liquidated
damages, or both, and the Executive agrees that such amounts shall
fully compensate the Executive, his dependents, heirs and
beneficiaries and the estate of the Executive for any and all
direct damages and consequential damages that they do or may suffer
as a result of the termination of the Executive’s employment,
or both, and are not in the nature of a
penalty. Notwithstanding the above, no member of the
Parent Group shall be liable to the Executive under any
circumstances for any consequential, incidental, punitive or
similar damages. The Executive expressly acknowledges
that the payments and other rights under this Article V shall be
the sole monies or other rights to which the Executive shall be
entitled to and such payments and rights will be in lieu of any
other rights or remedies he might have or otherwise be entitled
to. In the event of any termination under this Article
V, the Executive hereby expressly waives any rights to any other
amounts, benefits or other rights, including without limitation
whether arising under current or future compensation or severance
or similar plans, agreements or arrangements of any member of the
Parent Group (including as a result of changes in (or of) control
or similar transactions), unless Executive’s entitlement to
participate or receive benefits thereunder has been expressly
approved by the Board. Similarly, no one in the Parent
Group shall have any further liability or obligation to the
Executive following the date of termination, except as expressly
provided in this Agreement.
Exhibit 10.17
5.8
No Right
to Set Off . The Company shall not be entitled to
set off against amounts payable to the Executive hereunder any
amounts earned by the Executive in other employment, or otherwise,
after termination of his employment with the Company, or any
amounts which might have been earned by the Executive in other
employment had he sought such other employment.
5.9
Adjustments Due to
Excise Tax .
(a) If
it is determined that any amount or benefit to be paid or
payable to the Executive under this Agreement or otherwise in
conjunction with his employment (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise in conjunction with his employment)
would give rise to liability of the Executive for the excise
tax imposed by Section 49
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