EMPLOYMENT AGREEMENT
This
Employment Agreement (the “ Agreement ”),
entered into effective as of November 19, 2007 (the
“ Effective Date ”), is by and between
Orthofix Inc., a Minnesota corporation (the “
Company ”), and Timothy M. Adams, an individual
(the “ Executive ”).
PRELIMINARY STATEMENTS
A.
The Company and the Executive desire to enter into this
written employment agreement to memorialize the terms of their
relationship in order to retain the long-term services of the
Executive.
B.
The Executive desires to render such services, upon the terms
and conditions contained herein.
C.
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.
D.
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 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 Senior Vice President,
Chief Financial Officer, Treasurer and Assistant Secretary of
the Company, and be appointed to serve as Senior Vice
President, Chief Financial Officer, Treasurer and Assistant
Secretary of the Parent. The Executive shall be the
senior most financial officer of the Company and Parent and
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 Parent 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 chief financial
officers of public companies which are similar in size and
nature to, and the financial position of, the Parent Group,
including, but not limited to, appropriate involvement in
meetings of and exposure to the Parent Board and its
committees. 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).
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 Parent
Board’s prior written consent to serve on a corporate
board, which consent shall be at the Parent 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 up to two additional one-year
periods on each of April 1, 2009 and April 1, 2010,
respectively (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 April 1,
2009 and April 1, 2010, 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 Parent 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.
2 .2
Base Salary . The
Executive shall be paid a base salary of no less than $29,166.66
per month ($350,000 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 Parent 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 Parent 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 45% 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 67.5% 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 Parent 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 Parent 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 Parent 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 Parent Board’s annual
compensation review, but any such grants shall be at the sole
discretion of the Parent Board. As an inducement for him to
enter into this Agreement, on the date of his commencing
employment with the Company (the “Start Date”),
the Executive shall be granted (a) 125,000 stock options,
which stock options shall vest in one-third increments
beginning on the first anniversary of the Start Date and (b)
25,000 stock options, all of which 25,000 stock options shall
vest on the third anniversary of the Start Date. Both such
stock option grants shall be subject in all respects to the
terms and conditions of the related stock option agreements
evidencing the stock options, which shall be executed by the
Executive and Parent on or about the Start Date. The exercise
price of the stock options shall be determined as of the Start
Date based on the fair market value of the Parent’s
common stock in accordance with the Parent’s stock
option grant policies.
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
four 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.
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 30th
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 Parent Board, at a meeting of the Parent Board
called and held for such purpose, finding that in the good faith
opinion of the Parent 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 Parent 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 Parent
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 Parent 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
Parent Board or the Company’s senior executives.
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
Resignation
s. 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”).
(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. Any risk of
forfeiture included in restricted or other stock grants
previously made to the Executive shall immediately
lapse. If the Executive’s employment is
terminated pursuant to Section 4.4 or 4.5, the Executive shall
have until the earlier of the latest date that his stock
option or stock appreciation right would otherwise expire or
10 years from the original date of the grant of his option or
stock appreciation right to exercise any outstanding stock
options or stock appreciation rights. Such vesting
and extension shall occur notwithstanding any provision in any
Plans or related grant documents which provides a 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), and with respect to lapsing,
notwithstanding anything to the contrary in any Plans or grant
documents.
(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.
(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.
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 Parent 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.
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 liabilit
