Exhibit 10(oo)
EMPLOYMENT AGREEMENT
This AGREEMENT dated as of the 1st day of January, 2000, between Superior
TeleCom Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx
(the "Executive").
The Board of Directors of the Company (the "Board") recognizes that the
Executive's contribution to the future growth and success of the Company is
expected to be substantial. Whereas the Board desires to provide for the
continued employment of the Executive with the Company which the Board has
determined will reinforce and encourage the continued attention and dedication
of the Executive to the Company as a member of the Company's management, in the
best interest of the Company and its stockholders. Whereas the Executive is
willing to commit himself to serve the Company, on the terms and conditions
herein provided.
Moreover, the Board has determined that it is in the best interests of the
Company and its stockholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the Company. The Board
believes it is imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created by a pending
or threatened Change of Control and to encourage the Executive's full attention
and dedication to the Company currently and in the event of any threatened or
pending Change of Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that the
compensation and benefits expectations of the Executive will be satisfied and
which are competitive with those of other corporations.
In order to effect the foregoing, the Company and the Executive wish to enter
into this Agreement on the terms and conditions set forth below.
Accordingly, in consideration of the premises and the respective covenants and
agreements of the parties herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to serve the Company, on the terms and conditions set
forth herein.
2. TERM.
(a) The effective date of this Agreement is January 1, 2000 (the
"Effective Date") and will continue in effect (i) until either party gives
notice to the other, as provided in Section 8(d), that it does not wish to
continue the Executive's employment hereunder or (ii) unless terminated as
provided in Sections 8(a), (b) or (c). The "Term" shall be the period commencing
on the date hereof and ending on the earlier to occur of the events specified in
clause (i) or (ii) of the preceding sentence.
(b) Notwithstanding paragraph (a) above or the provisions of Section
8(d), the Company hereby agrees to continue the Executive in its employ, and the
Executive hereby agrees to
remain in the employ of the Company subject to the terms and conditions of this
Agreement, during any Transition Period. For purposes of this Agreement, the
Term shall, unless otherwise specified, include any Transition Period.
3. CERTAIN DEFINITIONS.
(a) A "COC Transition Date" shall mean a date during the Term (as
defined in Section 2) on which a Change of Control (as defined in Section 4)
occurs. Anything in this Agreement to the contrary notwithstanding, if a Change
of Control occurs and if the Executive's employment with the Company is
terminated prior to the date on which the Change of Control occurs, and if it is
reasonably demonstrated by the Executive that such termination of employment (i)
was at the request of a third party who has taken steps reasonably calculated to
effect a Change of Control or (ii) otherwise arose in connection with or in
anticipation of a Change of Control, then for all purposes of this Agreement the
"COC Transition Date" shall mean the date immediately prior to the date of such
termination of employment.
(b) A "Transition Period" is a period commencing on a COC Transition
Date and ending on the third anniversary of such date. If a subsequent COC
Transition Date is determined to occur during a Transition Period, then such
Transition Period shall continue until the third anniversary of such subsequent
COC Transition Date. If a subsequent COC Transition Date occurs after the
expiration of a Transition Period, a new Transition Period will commence on such
date and end on the third anniversary thereof.
(c) Notwithstanding anything to the contrary in this Agreement, for
purposes of calculating payments under Section 12(f), "Applicable Bonus" means
the higher of (i) the Highest Recent Bonus (as defined in Section 12(b)(i)) and
(ii) the Annual Bonus (as defined in Section 6(c)) paid or payable, including
any bonus or portion thereof which has been earned but deferred (and annualized
for any fiscal year consisting of less than twelve full months or during which
the Executive was employed for less than twelve full months), for the most
recently completed fiscal year during the Term, if any (the "Recent Annual
Bonus") (such higher amount being referred to as the "Highest Annual Bonus").
For purposes of calculating payments under all sections of this Agreement other
than Section 12(f), Applicable Bonus means the Recent Annual Bonus.
(d) A "Stock Option" is an option to purchase a number of shares of
stock of the Company at a fixed exercise price granted to the Executive by the
Stock Option Committee of the Board or any successor committee (the "Stock
Option Committee"), whether or not exercisable.
4. CHANGE OF CONTROL. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a
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"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of voting securities of the Company where such
acquisition causes such Person to own more than 20% or more of the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not be deemed to result in a Change of Control: (i)
any acquisition directly from the Company, (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any corporation controlled by the Company, (iv)
any acquisition by any corporation pursuant to a transaction that complies with
clauses (i), (ii) and (iii) of subsection (c) below or (v) any acquisition by
Xxxxxx X. Xxxxxx, The Alpine Group, Inc. or any corporation in which Xxxxxx X.
Xxxxxx or The Alpine Group, Inc. own, directly or indirectly, more than 50% of
the outstanding shares of common stock or the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors, as the case may be; and provided, further, that if any Person's
beneficial ownership of the Outstanding Company Voting Securities reaches or
exceeds more than 20% as a result of a transaction described in clause (i) or
(ii) above, and such Person subsequently acquires beneficial ownership of
additional voting securities of the Company, such subsequent acquisition shall
be treated as an acquisition that causes such Person to own more than 20% or
more of the Outstanding Company Voting Securities; or
(b) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) the consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company or the acquisition of assets of another corporation ("Business
Combination"); excluding, however, such a Business Combination pursuant to which
(i) (x) all or substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Company Voting Securities immediately prior
to such Business Combination, (y) Xxxxxx X. Xxxxxx or (z) The Alpine Group,
Inc., beneficially own, directly or indirectly, more than 50% of, respectively,
the then outstanding shares of common stock or the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a result of
such transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Voting Securities, (ii) no Person
(excluding any employee benefit plan (or related trust) of the Company or
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such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, more than 20% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
5. POSITION AND DUTIES.
(a) The Executive shall serve as an Executive Vice President of the
Company and as the President of the Industrial Products Group of the Company
with such responsibilities, duties and authority as are from time to time
assigned to the Executive by the Chief Executive Officer or the Board.
(b) During the Term, and excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Term it shall not be a violation of this Agreement
for the Executive to (A) serve on corporate, civic or charitable boards or
committees, provided that the Chief Executive Officer of the Company first
approves of such service, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions or (C) manage personal investments, so long as
such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement and are not directly competitive with the operating businesses of
the Company's subsidiaries.
6. COMPENSATION AND RELATED MATTERS.
(a) SALARY. (i) During the Term, the Company shall pay to the
Executive an annual base salary (the "Annual Base Salary") at a rate not less
than $260,000 or such higher rate as may from time to time be determined by the
Board, such salary to be paid in substantially equal installments in accordance
with the normal payroll practice of the Company. The Executive's salary will be
reviewed at least annually and shall be increased pursuant to such review by a
percentage no less than the percentage increase in the consumer price index, as
published by Bureau of Labor Statistics of the U.S. Department of Labor, for the
calendar year immediately preceding such review. Any increase in Annual Base
Salary shall not serve to limit or reduce any other obligation to the Executive
under this
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Agreement. Annual Base Salary shall not be reduced after any such increase and
the term Annual Base Salary as utilized in this Agreement shall refer to Annual
Base Salary as so increased.
(b) SIGN-ON BONUS. As an inducement to enter this Agreement, the
Executive shall be entitled to a one-time lump sum cash payment in the amount of
$44,288.83, payable promptly upon the execution of this Agreement
(c) ANNUAL BONUS. In addition to the Annual Base Salary, the Company
will pay the Executive an annual cash bonus (the "Annual Bonus"), up to a
maximum of 65% of Annual Base Salary, within 90 days following the last day of
the Company's fiscal year for which the Annual Bonus is awarded in an amount, if
any, determined and based upon a performance plan established by the Chief
Executive Officer and approved by the Board or the Compensation Committee of the
Board.
(d) RESTRICTED STOCK GRANT. On the Effective Date or as soon as
practicable thereafter, the Compensation Committee shall grant to the Executive
restricted shares of common stock of the Company ("Company Stock") with a fair
market value at the time of grant equal to $50,000, which restricted shares have
been set aside in the custody, control and possession of the Company and will be
released to the Executive in three equal annual installments on each of the
first, second and third anniversaries of the date of grant, provided that the
Executive is continuously employed for such three year period. Notwithstanding
the foregoing, in the event the Executive's employment is terminated by the
Company without Cause or by the Executive for Good Reason prior to the third
anniversary of the date of grant, the time based restrictions on such restricted
shares shall lapse and become fully vested. Notwithstanding anything herein to
the contrary, in the event the Executive's employment is terminated for Cause or
by Executive without Good Reason, prior to the third anniversary of the date of
grant of such Company Stock, then all subsequent scheduled releases shall be
cancelled and all restricted shares of Company Stock not theretofore released
shall be forfeited by the Executive and shall be cancelled and retired by the
Company. Shares of Company Stock granted pursuant to this Agreement shall be
made available only from issued shares of Company Stock reacquired by the
Company and held in treasury. The terms and conditions applicable to such
restricted shares shall be set forth in a separate agreement in a form
prescribed by the Company.
(e) EXPENSES. During the term of the Executive's employment
hereunder, the Executive shall be entitled to receive prompt reimbursement for
all reasonable and customary expenses incurred by the Executive in performing
services hereunder, including (i) all expenses of travel and living expenses
while away from home or business or at the request of and in the service of the
Company and (ii) a monthly cash automobile allowance of $1,000 covering all
expenses of maintaining and operating the automobile (including, without
limitation, cost, repairs, maintenance, insurance and parking), provided that
all such expenses are accounted for in accordance with the policies and
procedures established by the Company.
(f) WELFARE BENEFITS. During the Term, the Executive and/or the
Executive's family, as the case may be, shall be eligible for participation in
and shall receive all benefits
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under welfare benefit plans, practices, policies and programs provided by the
Company and its affiliated companies (including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs) to the extent
applicable generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs
provide the Executive with benefits which are materially less favorable, in the
aggregate, than the most favorable of such plans, practices, policies and
programs in effect for the Executive as of the date hereof or, if more favorable
to the Executive, those provided generally at any time to other peer executives
of the Company and its affiliated companies. As used in this Agreement, the term
"affiliated companies" shall include any company controlled by, controlling or
under common control with the Company.
(g) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the Term, the
Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to other
peer executives of the Company and its affiliated companies.
(h) FRINGE BENEFITS. During the Term:
(i) The Company shall reimburse the Executive for the
reasonable expenses incurred by the Executive in undergoing an annual physical
examination by a licensed physician.
(ii) The Company shall reimburse the Executive for the
reasonable expenses incurred by the Executive in connection with obtaining
professional tax and financial planning advice.
(i) VACATION. During the Term, the Executive shall be entitled to
paid vacation of four weeks per year, any unused portion of which shall be
forfeited as of the end of each year.
(j) DISABILITY OFFSET. Payments made to the Executive pursuant to
this Section 6 shall be reduced by the sum of the amounts, if any, payable to
the Executive at or prior to the time of any such payment under disability
benefit plans of the Company or under the Social Security disability insurance
program, and which amounts were not previously applied to reduce any such
payments.
7. OFFICES. Subject to Section 5, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a director of the
Company and any of its subsidiaries and in one or more executive offices of any
of the Company's subsidiaries, provided that the Executive is indemnified for
serving in any and all such capacities.
8. TERMINATION. The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the following circumstances:
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(a) DEATH OR DISABILITY. The Executive's employment shall terminate
automatically upon the Executive's death during the Term. If the Company
determines in good faith that Disability of the Executive has occurred during
the Term (pursuant to the definition of Disability set forth below), it may give
to the Executive written notice in accordance with Section 17 of this Agreement
of its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive business days (or such shorter period as will suffice for the
Executive to qualify for full disability benefits under the applicable
disability insurance policy or policies of the Company) as a result of
incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and reasonably
acceptable to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's employment
during the Term for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties pursuant to this Agreement (other
than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Executive by the Board or the Company's Chief Executive Officer which
specifically identifies the manner in which the Board or the Chief Executive
Officer believes that the Executive has not substantially performed the
Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company.
For purposes of this provision, no act or failure to act, on the
part of the Executive, shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without reasonable belief
that the Executive's action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or upon the instructions of the Chief
Executive Officer or a senior officer of the Company or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, by the Executive in good faith and in the best interests of the
Company. The cessation of employment of the Executive shall not be deemed to be
for Cause unless and until there shall have been delivered to the Executive 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 (after reasonable notice is provided to the Executive
and the Executive is given an opportunity, together with counsel, to be heard
before the Board), finding that, in the good faith opinion of the Board, the
Executive is guilty of the conduct described in subparagraph (i) or (ii) above,
and specifying the particulars thereof in detail.
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(c) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. The Executive's
employment may be terminated by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties materially
inconsistent with the Executive's position (including status, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 5(a) of this Agreement, or any other action by the Company which
results in a material diminution in such position, authority, duties or
responsibilities, excluding for this purpose isolated and inadvertent action(s)
not taken in bad faith and remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(ii) any material failure by the Company to comply with any of
the provisions of Section 6 or Section 12(a) or (b) of this Agreement, other
than isolated and inadvertent failure(s) not occurring in bad faith and remedied
by the Company promptly after receipt of notice thereof given by the Executive;
(iii) any termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement;
(iv) any failure by the Company to comply with and satisfy
Section 16(a) of this Agreement; or
(v) a relocation of the Executive's principal business
location to a location which is more than fifty (50) miles from his current
principal business location.
(d) TERMINATION ELECTION. Subject to the provisions of Section 2(b):
(i) A notice to Executive by the Company will constitute an
election by the Company to terminate the Executive's employment pursuant to
Section 2(a) 60 days following the date of delivery of the notice;
(ii) A notice to the Company by the Executive will constitute
an election by the Executive to terminate Executive's employment pursuant to
Section 2(a) 90 days following the date of delivery of the notice;
(iii) In no event, however, shall the Term of the Executive's
employment hereunder extend beyond the end of the month in which the Executive's
sixty-fifth (65th) birthday occurs.
(e) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive (other than termination by reason
of the Executive's death) shall be communicated by written Notice of Termination
to the other party hereto in accordance
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with Section 17 hereof. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date. The good
faith failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(f) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by reason of death or Disability, the date
of death of the Executive or the Disability Effective Date, as the case may be,
(ii) if the Executive's employment is terminated for Cause, the date specified
in the Notice of Termination, (iii) if the Executive's employment is terminated
by either of the elections pursuant to Section 8(d) above, the applicable date
of termination determined under Section 8(d) above, and (iv) if the Executive's
employment is terminated for any other reason, the date on which a Notice of
Termination is given; provided, however, that, if within 30 days after any
Notice of Termination is given the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination, the
Date of Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by a binding and
final arbitration award or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected).
9. COMPENSATION UPON TERMINATION.
(a) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Term, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations (as defined in Section 12(f)(i)a.) and the timely payment
or provision of Other Benefits (as defined in Section 12(f)(iv)). Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination. Notwithstanding the foregoing, the Company shall
maintain, at the Company's sole expense, in full force and effect, for the
continued benefit of the Executive for twelve months following the Disability
Effective Date, all employee welfare benefit plans and programs in which the
Executive was entitled to participate immediately prior to the Disability
Effective Date provided that the Executive's continued participation is possible
under the general terms and provisions of such plans and programs. In the event
that the Executive's participation in any such plan or program is barred, the
Company shall arrange to provide the Executive with benefits substantially
similar to those which the Executive would otherwise have been entitled to
receive under such plans and programs from which his continued participation is
barred.
(b) DEATH. If the Executive's employment is terminated by reason of
the Executive's death during the Term, this Agreement shall terminate without
further obligations to the
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Executive's legal representatives under this Agreement, other than for (i)
payment of Accrued Obligations (as defined in Section 12(f)(i)a.), calculated as
if the Executive's employment had continued for a period of 12 months following
the date of death; and (ii) the timely payment or provision of Other Benefits
(as defined in Section 12(f)(iv)). Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination.
(c) CAUSE. If the Executive's employment shall be terminated for
Cause during the Term, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay to the Executive
(i) his Annual Base Salary through the Date of Termination, (ii) the amount of
any compensation previously deferred by the Executive subject to the terms of
any plan or program, and (iii) Other Benefits, in each case to the extent
theretofore unpaid.
(d) VOLUNTARY TERMINATION. If the Executive voluntarily terminates
employment during the Term, excluding a termination for Good Reason, this
Agreement shall terminate without further obligations to the Executive, other
than for Accrued Obligations and the timely payment or provision of Other
Benefits. In such case, all Accrued Obligations shall be paid to the Executive
in a lump sum in cash within 30 days of the Date of Termination.
(e) TERMINATION ELECTION BY COMPANY; TERMINATION BY EXECUTIVE FOR
GOOD REASON. If the Executive's employment is terminated by the Company under
Section 8(d)(i) hereof or by the Executive under Section 8(c) hereof, the
Company shall pay to the Executive a lump sum in cash within 10 days of the Date
of Termination in an amount equal to the sum of: (i) the Annual Base Salary in
effect immediately prior to termination plus the Applicable Bonus; and (ii) the
Accrued Obligations (as defined in Section 12(f)(i)a.).
10. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which the Executive may qualify, nor, subject to Section 21, shall
anything herein limit or otherwise affect such rights as the Executive may have
under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
11. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement. Unless the
Executive's termination of employment gives rise to a right to payments and
benefits described in Section 12, if the Executive secures other employment, any
benefits
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the Company is required to provide to the Executive following termination of the
Executive's employment shall be secondary to those provided by another employer
(if any). However, if the Executive's employment is terminated such that the
Executive has a right to payments and benefits under Section 12, such amounts
shall not be reduced whether or not the Executive obtains other employment.
12. CHANGE OF CONTROL PROVISIONS. The following provisions of this Section
12 shall apply notwithstanding any contrary or inconsistent provision in any
other section of this Agreement, and all other provisions of this Agreement, to
the extent they may be contrary to or inconsistent with the provisions of this
Section 12, are hereby made subject to the provisions of this Section 12, which
shall be paramount in all respects, provided, however, that the provisions of
Section 3(c) shall apply, where applicable.
(a) POSITION AND DUTIES. During any Transition Period, the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding a COC Transition Date, and the Executive's services shall be performed
at the location where the Executive was employed immediately preceding a COC
Transition Date.
(b) COMPENSATION AND RELATED MATTERS.
(i) ANNUAL BONUS. For each fiscal year ending during any
Transition Period, the Company shall pay to the Executive an Annual Bonus in
cash at least equal to the Executive's highest cash bonus under the Company's
annual cash bonus program, or any comparable cash bonus under any predecessor or
successor plan, for the last three full fiscal years prior to the latest COC
Transition Date (the "Highest Recent Bonus"). Each such Annual Bonus shall be
paid no later than 60 days following the commencement of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus.
(ii) WELFARE BENEFITS. During any Transition Period, the
benefits to which the Executive and/or the Executive's family are entitled to
pursuant to Section 6(f) shall be no less favorable, in the aggregate, than the
most favorable of such plans, practices, policies and programs in effect for the
Executive at any time during the 120-day period immediately preceding the latest
COC Transition Date or, if more favorable to the Executive, those provided
generally at any time after the latest COC Transition Date to other peer
executives of the Company and its affiliated companies.
(iii) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During any
Transition Period, the plans, practices, policies and programs in which the
Executive is entitled to participate pursuant to Section 6(g) shall provide the
Executive with incentive opportunities (measured with respect to both regular
and special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, at least as favorable, in the aggregate, as the
most favorable of those provided by the Company and its affiliated
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companies for the Executive under such plans, practices, policies and programs
as of the date hereof or if more favorable to the Executive, those provided
generally at any time to other peer executives of the Company and its affiliated
companies.
(iv) FRINGE BENEFITS. During any Transition Period, the
Executive shall be entitled to fringe benefits, including, without limitation,
the benefits described in Section 6(h), in accordance with the most favorable
plans, practices, programs and policies of the Company and its affiliated
companies in effect for the Executive at any time during the 120-day period
immediately preceding the latest COC Transition Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
(v) OFFICE AND SUPPORT STAFF. During any Transition Period,
the Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of the foregoing provided
to the Executive by the Company and its affiliated companies at any time during
the 120-day period immediately preceding the latest COC Transition Date or, if
more favorable to the Executive, as provided generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies.
(vi) VACATION. During any Transition Period, the Executive
shall be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated companies as
in effect for the Executive at any time during the 120-day period immediately
preceding the latest COC Transition Date or, if more favorable to the Executive,
as in effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(c) GOOD REASON. During any Transition Period, for purposes of this
Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Sections 5(a) or 12(a) of this Agreement, or any other action by the Company
which results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose isolated, insubstantial and
inadvertent action(s) not taken in bad faith and remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 6 or Section 12(a) or (b) of this Agreement, other than
isolated, insubstantial and inadvertent failure(s) not occurring in bad faith
and remedied by the Company promptly after receipt of notice thereof given by
the Executive;
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(iii) any termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(iv) any failure by the Company to comply with and satisfy
Section 16(a) of this Agreement.
For purposes of this Section 12(c), any good faith determination of
"Good Reason" made by the Executive shall be conclusive. A termination by the
Executive for any reason during the 30-day period immediately following the date
which is six months after any COC Transition Date shall be deemed to be a
termination for Good Reason for all purposes of this Agreement.
(d) COMPENSATION UPON TERMINATION FOR DISABILITY. If the Executive's
employment is terminated by reason of the Executive's Disability during any
Transition Period, then with respect to the provision of Other Benefits, the
term Other Benefits as utilized in Section 9(a) shall include, and the Executive
shall be entitled after the Disability Effective Date to receive, disability and
other benefits at least equal to the most favorable of those generally provided
by the Company and its affiliated companies to disabled executives and/or their
families in accordance with such plans, programs, practices and policies
relating to disability, if any, as in effect generally with respect to the most
senior executives and their families at any time during the 120-day period
immediately preceding the latest COC Transition Date or, if more favorable to
the Executive and/or the Executive's family, as in effect at any time thereafter
generally with respect to other peer executives of the Company and its
affiliated companies and their families.
(e) COMPENSATION UPON TERMINATION BY DEATH. If the Executive's death
occurs during any Transition Period, then with respect to the provision of Other
Benefits, the term Other Benefits as utilized in Section 9(b) shall include,
without limitation, and the Executive's estate and/or beneficiaries shall be
entitled to receive, benefits at least equal to the most favorable benefits
provided by the Company and its affiliated companies to the estates and
beneficiaries of the most senior executives of the Company and its affiliated
companies under such plans, programs, practices and policies relating to death
benefits, if any, as in effect with respect to the most senior executives and
their beneficiaries at any time during the 120-day period immediately preceding
the latest COC Transition Date or, if more favorable to the Executive's estate
and/or the Executive's beneficiaries, as in effect on the date of the
Executive's death with respect to other peer executives of the Company and its
affiliated companies and their beneficiaries.
(f) COMPENSATION UPON TERMINATION BY THE COMPANY WITHOUT CAUSE OR
FOR GOOD REASON. If, during any Transition Period, the Company shall terminate
the Executive's employment other than for Cause or Disability or the Executive
shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts:
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a. the sum of (1) the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid, (2) the
product of (x) the Applicable Bonus and (y) a fraction, the numerator of which
is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (3) any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses (1), (2), and (3)
shall be referred to in this Agreement as the "Accrued Obligations"); and
b. the amount equal to the product of (1) two and (2)
the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual
Bonus; and
c. an amount equal to the excess of (a) the actuarial
equivalent of the benefit under the Company's defined benefit retirement plans,
including any excess or supplemental retirement plan in which the Executive
participates (together, the "Retirement Plans") (utilizing actuarial assumptions
no less favorable to the Executive than those in effect under the Retirement
Plans immediately prior to the latest COC Transition Date), which the Executive
would receive if the Executive's employment continued for two years after the
Date of Termination assuming for this purpose that all accrued benefits are
fully vested, and, assuming that the Executive's compensation in both of the two
years is that required by Section 6(a) and Section 6(c), over (b) the actuarial
equivalent of the Executive's actual benefit (paid or payable), if any, under
the Retirement Plans as of the Date of Termination;
(ii) for two years after the Executive's Date of Termination,
or such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to the
Executive and/or the Executive's family at least equal to those which would have
been provided to them in accordance with the plans, programs, practices and
policies described in Section 6(f) of this Agreement if the Executive's
employment had not been terminated or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer executives of
the Company and its affiliated companies and their families, provided, however,
that if the Executive becomes reemployed with another employer and is eligible
to receive medical or other welfare benefits under another employer provided
plan, the medical and other welfare benefits described herein shall be secondary
to those provided under such other plan during such applicable period of
eligibility. For purposes of determining eligibility (but not the time of
commencement of benefits) of the Executive for retiree benefits pursuant to such
plans, practices, programs and policies, the Executive shall be considered to
have remained employed until two years after the Date of Termination and to have
retired on the last day of such period;
(iii) the Company shall, at its sole expense as incurred,
provide the Executive with outplacement services the scope and provider of which
shall be selected by the Executive in his sole discretion, and which shall
include the provision of reasonable office space and secretarial assistance,
provided, that the Company's responsibility under this clause (iii) shall be
limited to $30,000;
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(iv) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall
be referred to in this Agreement as the "Other Benefits"); and
(v) the Company shall cause all Stock Options and restricted
shares of Company Stock held by or for the benefit of the Executive to become
immediately fully vested and/or exercisable.
13. LEGAL FEES.
(a) Following any termination of the Executive's employment
that gives rise to a right to payments and benefits under Section 12, the
Company shall pay as incurred, to the full extent permitted by law, all legal
fees and expenses which the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Code.
(b) Following any termination of the Executive's employment
other than a termination of employment described in paragraph (a), above, the
Company shall promptly reimburse the Executive, to the extent permitted by law,
for all reasonable legal fees and expenses reasonably incurred by the Executive
as a result of any contest by the Company or the Executive of the validity or
enforceability of, or liability under, any provisions of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Code, provided, that such
reimbursement shall be limited to fees and expenses incurred in connection with
the contest of issues on which the Executive substantially prevails.
14. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 14) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up
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Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 14(a), if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Payments do not exceed 110% of the greatest
amount (the "Reduced Amount") that could be paid to the Executive such that the
receipt of Payments would not give rise to any Excise Tax, then no Gross-Up
Payment shall be made to the Executive and the Payments, in the aggregate, shall
be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 14(c), all determinations
required to be made under this Section 14, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Xxxxxx
Xxxxxxxx LLP or such other certified public accounting firm as may be designated
by the Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 14, shall be paid
by the Company to the Executive within 5 days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 14(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than 10 business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
-16-
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 14(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 14(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 14(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to Section 14(c), a determination
is made that the Executive shall not be entitled
-17-
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
15. NONCOMPETITION.
(a) So long as the Executive is employed by the Company under this
Agreement and unless this Agreement is terminated for any reason, the Executive
agrees not to enter into competitive endeavors.
(b) During the Term and any period thereafter during which or in
respect of which the Executive receives payments from the Company under Section
9 or Section 12, the Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive during the
Executive's employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
After termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may otherwise
be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 15 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under Section 12 of this Agreement.
16. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of the Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as he would be entitled to hereunder if he terminated his
employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in the Agreement, Company shall mean the
Company as herein before defined and any successor to its business and/or assets
as aforesaid which executes and delivers the agreement provided for in this
Section 16 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
-18-
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devises and legatees. If the Executive should die while any amounts would still
be payable to him hereunder if he had continued to live, all such amounts unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devise, legatee, or other designee or, if there be
no such designee, to the Executive's estate.
17. NOTICE. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: Xx. Xxxxxxx X. Xxxxxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
If to the Company: Superior TeleCom Inc.
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Chief Executive Officer
or to such other address as any party may have furnished to the
others in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
18. MISCELLANEOUS. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and such officer of the Company as may be
authorized by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of New York without regard to its conflicts of law principles.
19. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
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20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officers employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled, provided, however, that this Agreement should
not supersede any existing benefit or agreement which provides such benefit,
including, without limitation, life or disability insurance agreements and
retirement plans currently in effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
ATTEST: SUPERIOR TELECOM INC.
------------------------------ ------------------------------------
Xxxxxxx X. Xxxxxxxxx, Esq. Xxxxxx X. Xxxxxx
Corporate Secretary Chairman and Chief Executive Officer
(SEAL)
ATTEST: EXECUTIVE
------------------------------ ------------------------------------
Xxxxxxx X. Xxxxxxxxx, Esq. Xxxxxxx X. Xxxxxxxxx
Corporate Secretary
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