Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is dated effective as of
the 1st day of January, 2001 (the "Effective Date"), between Superior TeleCom
Inc., a Delaware corporation ("Parent"), Superior Telecommunications Inc., a
Delaware corporation (the "Company", together with the Parent and its affiliated
companies, the "Employer") which is a wholly owned subsidiary of Parent and
Xxxxxxx X. Xxxxxxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive is a Senior Vice President, Corporate Secretary
and General Counsel of The Alpine Group, Inc. ("Alpine"), pursuant to an
employment agreement dated as of October 1, 1999;
WHEREAS, subject to the terms of this Agreement, the Executive is
willing to relinquish his position as a Senior Vice President and General
Counsel of Alpine;
WHEREAS, the Parent and the Company desire that the Executive
relinquish his position as a Senior Vice President and General Counsel of Alpine
and be employed in an executive capacity with the Parent and the Company,
subject to the terms and conditions hereof, and the Executive desires to do so;
WHEREAS, the Parent, the Company and the Executive desire to enter into
an employment agreement, effective as of the date set forth above; and
WHEREAS, the parties hereto desire to set forth in writing the terms
and conditions of their understandings and agreements.
NOW THEREFORE, in consideration of the foregoing, of the mutual
promises contained herein and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. POSITION/DUTIES.
(a) During the Employment Term, the Executive shall serve as the
Senior Vice President, Corporate Secretary and General Counsel of the Parent
with such responsibilities, duties and authority as are from time to time
assigned to the Executive by the Chief Executive Officer or the Board of
Directors of the Parent (the "Board"). The Executive shall be the chief legal
officer of the Parent and report directly to the Chief Executive Officer of the
Parent. The Executive's duties shall be performed primarily at the Parent's
headquarters office in the New York City metropolitan area or, if so agreed, as
otherwise mutually agreed in writing between the Executive and the Employer.
(b) During the Employment Term, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote all or substantially all of his full business time, energy and skill
in the performance of his duties for the Employer and to perform faithfully and
efficiently such duties. During the Employment 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 Parent first approves of such service and (B) 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 Employer in accordance
with this Agreement and are not directly competitive with the operating
businesses of the Employer. The parties hereto acknowledge and agree that the
Executive also serves, and shall be entitled to continue to serve, as the
Corporate Secretary of Alpine.
(c) Notwithstanding anything to the contrary in this Section
1, the Executive agrees to serve without additional compensation, if elected or
appointed thereto, as a director of the Parent and any of its subsidiaries and
in one or more executive offices of any of the Parent's subsidiaries, provided
that the Executive is indemnified for serving in any and all such capacities.
2. EMPLOYMENT TERM. The Executive's term of employment under this
Agreement (such term of employment is herein referred to as the "Employment
Term") shall commence on the Effective Date and shall continue until terminated
by either party as provided in Section 8. In no event, however, shall the
Employment Term extend beyond the end of the month in which the Executive's
sixty-fifth birthday occurs.
3. BASE SALARY. During the Employment Term, the Employer agrees to pay
the Executive a base salary ("Base Salary") at an annual rate of not less than
$226,000 or such higher rate as may from time to time by determined by the
Board, payable in substantially equal installments accordance with the normal
payroll practices of the Employer. The Executive's Base Salary shall be subject
to annual review by the Board and shall be increased as of each anniversary of
the Effective Date pursuant to such review by a percentage no less than the
percentage increase in the consumer price index, as published by the Bureau of
Labor Statistics of the U.S. Department of Labor, for the calendar year
immediately preceding such review. Any increase in Base Salary shall not serve
to limit or reduce any other obligation to the Executive under this Agreement.
Base Salary shall not be reduced after any such increase and the term Base
Salary as utilized in this Agreement shall refer to Base Salary as so increased.
4. ANNUAL BONUS. During the Employment Term, in addition to the Base
Salary, the Employer will pay the Executive an annual cash bonus (the "Annual
Bonus") within 90 days following the last day of the Parent's fiscal year for
which the Annual Bonus is awarded pursuant to the Parent's Senior Management
Annual Incentive Plan; provided, however, on or after a Change of Control (as
defined in Appendix A) the dollar amount of the Annual Bonus shall be at least
equal to the Executive's highest cash bonus under the Employer'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 a Change of Control or, if
the Change of Control occurs during the first year of the Employment Term,
$80,000.
5. EMPLOYEE BENEFITS
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(a) WELFARE BENEFITS. During the Employment 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 under welfare benefit plans,
practices, policies and programs provided by the Employer (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 peer executives of the
Employer, 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 any other peer
executive of the Employer. Without limiting the foregoing, the Executive shall
be entitled to reimbursement of any unreimbursed medical expenses under the
executive medical reimbursement program to be instituted by the Employer
consistent with the similar program in effect at Alpine immediately prior to the
Effective Date.
(b) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the
Employment Term, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to peer executives of the Employer. In addition, the
Employer covenants to adopt on or before the tenth day following the date of the
execution of this Agreement, and, effective as of the Effective Date, to name
the Executive as a participant in, a Senior Executive Retirement Plan (the
"SERP") substantially in the form as the Alpine Senior Executive Retirement Plan
in effect on December 31, 2000. For purposes of determining the amount of the
Executive's vested rights under the SERP as of the Effective Date (but not with
regard to the calculation of the Executive's benefit under the SERP), the
Executive shall be treated as having completed ten years of service with the
Employer.
(c) FRINGE BENEFITS. During the Employment Term:
(i) The Employer shall reimburse the Executive for
the reasonable expenses incurred by the Executive in undergoing an
annual physical examination by a licensed physician.
(ii) The Employer shall reimburse the Executive for
the reasonable expenses incurred by the Executive in connection with
obtaining professional tax and financial planning advice.
(d) VACATION. During the Employment 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. In addition, the Executive shall
be allowed paid absences from his duties during such times as the Executive
shall in good faith identify are required by his religion.
(e) EXPENSES. During the Employment Term, 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 Employer and (ii) a monthly
automobile cash allowance of $1,000.
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(f) DISABILITY OFFSET. Payments made to the Executive pursuant
to this Section 5 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 Employer or under the Social Security disability insurance
program, and which amounts were not previously applied to reduce any such
payments.
6. STOCK OPTIONS.
(a) NEW OPTION GRANT. On the Effective Date or as soon as
administratively practicable thereafter (the "Grant Date"), the Stock Option
Committee of the Board will grant to the Executive an option (the "Option") to
purchase 54,091 shares of the Parent's common stock, par value $.01 (the "Common
Stock") under the Parent's 1996 Stock Option Plan as may be in effect from time
to time (the "1996 Stock Option Plan") at an exercise price equal to the fair
market value (as defined in the 1996 Stock Option Plan) of the Common Stock on
the Grant Date. The Option shall, to the maximum extent permitted by applicable
law, be designated as an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code") and to the
extent not allowable, the Option shall be a non-qualified stock option. To the
extent that there is an insufficient number of shares of Common Stock available
for awards granted under the 1996 Stock Option Plan and the Parent has not
obtained stockholder approval of an amendment to the 1996 Stock Option Plan to
increase the number of shares of Common Stock available for awards granted under
the 1996 Stock Option Plan, the Option shall be conditioned upon the Parent
obtaining stockholder approval of such an amendment. The Parent undertakes to
propose, and recommend that the stockholders of the Parent approve, an amendment
to the 1996 Stock Option Plan to increase the number of shares of Common Stock
available for awards granted under the 1996 Stock Option Plan at the next annual
stockholder meeting of the Parent, which is to be held not later than June 15,
2001. Alpine, the majority stockholder of the Parent, will confirm in writing to
the Parent that it would vote in favor of such an amendment.
(b) REPLACEMENT OPTION. On the Effective Date or as soon as
administratively practicable thereafter (the "Cancellation Date"), the Stock
Option Committee of the Board shall (i) cancel the outstanding stock options
held by the Executive to purchase 45,909 shares of Common Stock under the 1996
Stock Option Plan and (ii) immediately grant to the Executive an option under
the 1996 Stock Option Plan to purchase 45,909 shares of the Parent's Common
Stock (the "Replacement Option"). The Replacement Option shall have an exercise
price equal to the fair market value (as defined in the 1996 Stock Option Plan)
of the Common Stock on the date the Replacement Option grant is made, have the
same exercise conditions (including methods of exercise) as the cancelled stock
options and expire on the tenth anniversary of the Cancellation Date. The
Executive hereby expressly consents to the aforementioned cancellation of the
45,909 stock options pursuant to this Section 6(b). To the extent that there is
an insufficient number of shares of Common Stock available for awards granted
under the 1996 Stock Option Plan and the Parent has not obtained stockholder
approval of an amendment to the 1996 Stock Option Plan to increase the number of
shares of Common Stock available for awards granted thereunder, the Replacement
Option shall be conditioned upon the Parent obtaining stockholder approval of
such an amendment. The Parent undertakes to
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propose, and recommend that the stockholders of the Parent approve, an amendment
to the 1996 Stock Option Plan to increase the number of shares of Common Stock
available for awards granted under the 1996 Stock Option Plan at the next annual
stockholder meeting of the Parent, which is to be held not later than June 15,
2001. Alpine, the majority stockholder of the Parent, will confirm in writing to
the Parent that it would vote in favor of such an amendment.
(c) VESTING. The Option and the Replacement Option shall each
vest and become exercisable in installments as provided herein, which shall be
cumulative. Subject to the terms in this Section 6, the Option and the
Replacement Option shall each vest and become exercisable in equal annual
installments of 33_% each, on the first, second and third anniversary of the
Grant Date, with respect to the Option, and on the first, second and third
anniversary of the Cancellation Date with respect to the Replacement Option,
provided the Executive is employed by the Employer on each such vesting date. In
the event of the Executive's termination of employment (i) by the Executive
other than because of death, Disability (as defined below) or Good Reason or
(ii) by the Employer for Cause, all stock options to purchase shares of Common
Stock (including, without limitation, the Option and the Replacement Option) not
theretofore exercisable will lapse and be forfeited. In the event the
Executive's employment is terminated for any other reason, including, without
limitation, a termination because of death or Disability, Good Reason or without
Cause, all stock options to purchase shares of Common Stock (including, without
limitation, the Option and the Replacement Option) not theretofore exercisable
will thereupon become exercisable.
(d) FORM OF OPTION. The Option and the Replacement Option
shall be granted pursuant to and, to the extent not contrary to the terms of
this Agreement, shall be subject to all of the terms and conditions imposed
under the Parent's standard stock option agreement and the 1996 Stock Option
Plan or any other stock option plan sponsored by Parent.
(e) DISCRETIONARY GRANTS. In addition to the Option and
Replacement Option grants, at the sole discretion of the Board (or a duly
authorized committee thereof), the Executive shall be eligible for additional
annual grants of stock options commencing after December 31, 2002.
(f) REPURCHASE RIGHT. (i) General. The Replacement Option
granted to the Executive pursuant to Section 6(b) shall be subject to a right of
repurchase ("Repurchase Right") by the Parent under this Section 6(f). The
Repurchase Right entitles the Parent to repurchase, in accordance with the
provisions of this Section 6(f), 100% of the then unexercised portion of the
Replacement Option (whether vested or unvested) held by the Executive. If the
Parent elects to exercise its Repurchase Right, it shall be required to pay the
Executive the Repurchase Price, in the amount and manner described herein, for
the Replacement Option. The Repurchase Right may not be exercised by the Parent
more than one time or with respect to less than all of the unexercised portion
of the Replacement Option (whether vested or unvested) held by the Executive. If
the Repurchase Right is exercised by the Parent, it must be exercised with
respect to 100% of the unexercised portion of the Replacement Option (whether
vested or unvested) held by the Executive. The provisions of this Section 6(f)
shall be contained in the written option award agreement to be entered into
between the Executive and the Parent with respect to the Replacement Option.
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(ii) Exercise of Repurchase Right. The Parent may
exercise its Repurchase Right by providing written notice to the Executive which
shall advise the Executive that it is exercising its Repurchase Right with
respect to the Replacement Option and such notice shall also state the closing
date and time for the exercise of the Repurchase Right and payment of the
Repurchase Price, which date shall be no later than 15 days following the Notice
Date, as defined herein. The date that the Parent provides written notice of its
intent to exercise the Replacement Option shall be referred to hereinafter as
the "Notice Date." The Executive shall have ten days following the Notice Date
to exercise all or any portion of the vested Replacement Option.
(iii) Repurchase Price. If the Parent elects to
exercise its Repurchase Right with respect to the Replacement Option it shall be
required to pay the Executive the repurchase price ("Repurchase Price") for the
Replacement Option. The Repurchase Price shall be a dollar amount equal to the
sum of (x) the Fair Market Value, as defined herein, of all shares of the Common
Stock covered by the Replacement Option subject to the Repurchase Right reduced
by the aggregate exercise price of the Replacement Option plus (y) a dollar
amount which reflects the additional value, if any, of the Replacement Option as
determined by the Board of Directors of the Parent (or an authorized committee
thereof) in its sole discretion which value may be based on an adjusted
Black-Scholes basis or such other method determined by the Board of Directors of
the Parent (or an authorized committee thereof) in its sole discretion.
Notwithstanding the foregoing provisions of this Section 6(f)(iii), the
Repurchase Price paid for the repurchase of a Replacement Option shall in no
event be computed on the basis of a Fair Market Value of less than $6.00 per
share of the Common Stock plus the exercise price of the Replacement Option. For
purposes of this Section 6(f), the term "Fair Market Value" shall mean the
average of the closing price reported for the Common Stock, as reported by the
principal national securities exchange in the United States on which it is then
traded or if not traded on any national securities exchange, as quoted on an
automated quotation system sponsored by the National Association of Securities
Dealers, during the twenty (20) trading days immediately preceding the Notice
Date.
(iv) Payment of Repurchase Price. The Parent shall
pay the Executive the Repurchase Price pursuant to any of the following methods:
(A) cash payment; (B) Cash Equivalents, as defined herein; (C) restricted shares
of Common Stock which shall be subject to a three year annual vesting schedule
commencing on the closing date of the Parent's exercise of its Repurchase Right
and where one-third portion of the restricted stock shall be fully vested on the
repurchase closing date and the balance of the shares shall become fully vested
in equal installments of 33-1/3% each, on the first and second anniversaries of
the closing date; or (D) any combination of any of the foregoing methods. For
purposes of this Section 6(f), the term "Cash Equivalent" shall mean any of the
following: (i) securities issued or directly and fully guaranteed or insured by
the United States of America ("U.S.") or any agency or instrumentality thereof
provided the full faith and credit of the U.S. is pledged in support thereof;
(ii) certificates of deposit of any commercial bank in the U.S. having capital
and surplus in an aggregate amount of not less than $500,000,000 (hereinafter,
an "Approved Bank") and with maturities of not more than twelve months from the
date of acquisition; (iii) U.S. Dollar denominated commercial paper issued by an
Approved Bank with maturities of not more than twelve months after the date of
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acquisition; and (iv) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in (i)
through (iii) herein.
(v) Expiration of Repurchase Price. The Parent's
Repurchase Right shall automatically expire and terminate on July 1, 2002.
(g) ELIGIBILITY FOR DEFERRAL. The Option, Replacement Option
and any restricted shares of Common Stock subject to a vesting schedule that are
provided to the Executive under Section 7(a) of this Agreement shall be eligible
for deferral by the Executive under the Parent's Deferred Stock Account Plan in
accordance with the terms and provisions of such plan. In addition, if the
Parent exercises its Repurchase Right with respect to the Replacement Option
held by the Executive, the proceeds received by the Executive from the Parent
following such exercise shall be eligible for deferral by the Executive under
the Parent's Deferred Cash Account Plan, to the extent the proceeds are paid in
cash or Cash Equivalents, and shall be eligible for deferral under the Parent's
Deferred Stock Account Plan, to the extent the proceeds are paid in restricted
shares of Common Stock under Section 6(f)(iv) of this Agreement. Deferrals made
by the Executive under the Parent's Deferred Cash Account Plan shall be subject
to the terms and provisions of such plan.
7. RESTRICTED STOCK.
(a) GRANT. As of January 2, 2001, the Stock Option Committee
of the Board has granted to the Executive 50,000 restricted shares of Common
Stock, which restricted shares have been set aside in the custody, control and
possession of the Parent and have and will be released to the Executive at the
rate of 25% on January 2, 2002, 25% on January 2, 2003 and 50% on January 2,
2004. In the event of the Executive's termination of employment prior to the
third anniversary of the Effective Date (i) by the Executive other than because
of death, Disability (as defined below) or Good Reason or (ii) by the Employer
for Cause, then the scheduled releases on any subsequent anniversary of the
Effective Date shall be cancelled and all restricted shares of Common Stock not
theretofore released shall be forfeited by the Executive and shall be cancelled
and retired by the Parent. In the event the Executive's employment is terminated
for any other reason prior to the third anniversary of the Effective Date,
including, without limitation, a termination because of death or Disability,
Good Reason or without Cause, all restricted shares of Common Stock (including,
without limitation, restricted shares of Common Stock granted pursuant to this
Section 7(a)) not theretofore released shall thereupon become released.
(b) TAX LOAN. Not less than 10 days prior to the due date of
the Executive's federal income tax payment for every taxable year of the
Executive in which his income tax liability is increased by or as a result of
the grant of restricted shares of Common Stock pursuant to Section 7(a) hereof,
the Employer shall lend to the Executive an amount equal to such increased tax
liability. The Employer and the Executive shall enter into an appropriate
agreement providing for the repayment by the Executive of such loan, which
agreement shall provide that (i) if the principal amount of such loan (together
with the aggregate outstanding amount of other loans between the Employer and
the Executive) exceeds the de minimis amount set forth in Section 7872(c)(3) of
the Code (or any successor provision thereof), then such loan
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shall bear interest at a rate not less than the applicable Federal rate
determined in accordance with Section 7872(f)(2) of the Code (or any successor
provision thereof) and (ii) if the Executive disposes of any of the shares of
restricted Common Stock prior to the third anniversary of the date any loan is
advanced to the Executive pursuant to this Section 7(b), the principal balance
of the loan shall become immediately due and payable in cash or shares of Common
Stock owned by the Executive for a period of at least six months or such other
period necessary to avoid a charge, for accounting purposes, against the
Employer's earnings as reported in the Employer's financial statements. The
Parent's Stock Option Committee of the Board has approved the delivery of
previously owned shares of Common Stock held for at least six months by the
Executive to satisfy his obligation to repay the loan advanced to the Executive
pursuant to this Section 7(b).
8. TERMINATION. The Executive's employment and the Employment Term
shall terminate without any breach of this Agreement on the first of the
following to occur:
(a) DISABILITY. Upon 90 days' written notice by the Employer
to the Executive of termination due to Disability during the Employment Term,
provided that, within the 90 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 Employer on a full-time basis for 180 consecutive
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 Employer) 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 Employer or its insurers and reasonably acceptable to the Executive or the
Executive's legal representative.
(b) DEATH. Automatically on the date of death of the Executive
during the Employment Term.
(c) CAUSE. Immediately upon written notice by the Employer to
the Executive of a termination for Cause during the Employment Term provided,
such notice is given within 90 days of the Board's discovery of the Cause event.
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 Chief Executive Officer of the Parent which specifically identifies
the manner in which the Board or the Chief Executive Officer of the
Parent 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 Employer.
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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 Employer. 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 of
the Parent or a senior officer of the Parent or based upon the advice of counsel
for the Employer 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 Employer.
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.
(d) WITHOUT CAUSE. Upon 60 days' written notice by the
Employer to the Executive of an involuntary termination without Cause during the
Employment Term.
(e) GOOD REASON. Upon written notice by the Executive to the
Employer of a termination for Good Reason during the Employment Term provided,
such notice is given within 90 days of the Executive's discovery of the Good
Reason event. 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 1(a) of this Agreement, or
any other action by the Employer 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 Employer promptly after receipt of notice thereof
given by the Executive; provided that during any Transition Period (as
defined in Section 9(a)), Good Reason shall include any assignment of
duties inconsistent with the Executive's position or any diminution
(whether or not material);
(ii) any material failure by the Employer to comply
with any of the provisions of Sections 3, 4, 5, 6, 7, 9, 10 or 11 of
this Agreement or any other failure with regard to a material provision
of this Agreement, other than isolated and inadvertent failure(s) not
occurring in bad faith and remedied by the Employer promptly after
receipt of notice thereof given by the Executive; provided that during
any Transition Period, Good Reason shall include any failure (whether
or not material);
(iii) the Employer's requiring the Executive to be
based at any office or location other than as provided in Section 1(a);
(iv) any termination by the Employer of the
Executive's employment otherwise than as expressly permitted by this
Agreement;
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(v) any failure by the Employer to comply with and
satisfy Section 16(a) of this Agreement;
(vi) during any Transition Period, any failure of the
Employer to continue in effect any health or welfare plan, employee
benefit plan, pension plan, fringe benefit plan, vacation or
compensation plan, arrangement or program in which the Executive (and
eligible dependents) are participating at any time during the 120-day
period immediately preceding the Change of Control or, if more
favorable to the Executive, those provided generally at any time after
the Change of Control to any other peer executive of the Employer and
their beneficiaries, unless the Executive (and eligible dependents) are
permitted to participate in other plans providing the Executive (and
eligible dependents) with substantially comparable benefits at no
greater after-tax cost to the Executive (and eligible dependents), or
the taking of any action by the Employer which would adversely affect
the Executive's (and eligible dependents) participation in or reduce
the Executive's (and eligible dependents) benefits under any such plan;
(vii) during any Transition Period, any failure of
the Employer to provide the Executive with an office or offices of a
size and with furnishings and other appointments, and to personal
secretarial and other assistance, at least equal to the most favorable
of the foregoing provided to the Executive by the Employer at any time
during the 120-day period immediately preceding the Change of Control
or, if more favorable to the Executive, those provided generally at any
time after the Change of Control to any other peer executive of the
Employer; or
(viii) any termination by the Executive during the
30-day period immediately following the date which is six months after
any Change of Control.
During any Transition Period, any good faith determination of "Good Reason" made
by the Executive shall be conclusive.
(f) WITHOUT GOOD REASON. Upon 120 days' written notice by the
Executive to the Employer of the Executive's voluntary termination of employment
without Good Reason (which the Employer may, in its sole discretion, make
effective earlier than any notice date).
(g) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Employer 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 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)
other than in connection with a termination pursuant to Section 8(d), 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 is other than
the date of receipt of such notice, specifies the termination date. The good
faith failure by the Executive or the Employer to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason
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or Cause shall not waive any right of the Executive or the Employer,
respectively, hereunder or preclude the Executive or the Employer, respectively,
from asserting such fact or circumstance in enforcing the Executive's or the
Employer's rights hereunder. 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) COMPENSATION UPON TERMINATION FOR DISABILITY. If the
Executive's employment by the Employer is terminated by reason of the
Executive's Disability during the Employment Term, the Employer shall pay or
provide the Executive the sum of (i) the Executive's Base Salary through the
date of termination to the extent not theretofore paid, (ii) the product of (x)
the Annual Bonus paid or payable, including any bonus or portion thereof which
has been earned but deferred, for the most recently completed fiscal year during
the Employment Term, if any, or, if the Executive's termination of employment
occurs during the first year of the Employment Term, $80,000 (the "Annual Bonus
Amount"), multiplied by (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, (iii) 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 and (iv)
reimbursement for any unreimbursed expenses incurred through the date of
termination (the sum of the amounts described in clauses (i), (ii), (iii) and
(iv)) shall be referred to in this Agreement as the "Accrued Obligations"). The
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the date of termination.
In addition, to the extent not theretofore paid or provided,
the Employer shall timely pay or provide to the Executive's legal
representatives 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 Employer (such other amounts and
benefits shall be referred to in this Agreement as the "Other Benefits").
Notwithstanding the foregoing, if the Executive's employment by the Employer is
terminated by reason of the Executive's Disability during the period commencing
six months prior to a Change of Control and ending on the third anniversary of a
Change of Control (the "Transition Period"), the term "Other Benefits" shall
include, and the Executive shall be entitled after the date of termination to
receive, disability and other benefits at least equal to the most favorable of
those generally provided by the Employer 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 peer
executives and their families at any time during the 120-day period immediately
preceding the Change of Control or, if more favorable to the Executive and/or
the Executive's family, as in effect at any time thereafter generally with
respect to any other peer executive of the Employer and their families.
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Notwithstanding the foregoing, the Employer shall maintain, at
the Employer's sole expense, in full force and effect, for the continued benefit
of the Executive for 12 months following the date of termination, all employee
welfare benefit plans and programs (including, without limitation, the
Employer's executive medical reimbursement program) in which the Executive was
entitled to participate immediately prior to the date of termination provided
that the Executive's continued participation is possible under the general terms
and provisions of such plans and programs ("Continued Welfare Benefits"). In the
event that the Executive's participation in any such plan or program is barred,
the Employer 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) COMPENSATION UPON TERMINATION FOR DEATH. If the
Executive's employment by the Employer is terminated by reason of the
Executive's death during the Employment Term, the Employer shall (i) pay the
Accrued Obligations and an amount equal to the sum of the Executive's Base
Salary in effect immediately prior to termination and the Annual Bonus Amount to
the Executive's legal representatives, in a lump sum in cash within 30 days of
the date of termination; and (ii) timely pay or provide the Other Benefits; and
(iii) timely pay or provide the Continued Welfare Benefits for twelve months
following the date of termination. Notwithstanding the foregoing, if the
Executive's employment by the Employer is terminated by reason of the
Executive's death during the Transition Period, the term Other Benefits 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 Employer to the estates and beneficiaries of peer
executives of the Employer 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 Change of Control 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 any other peer executive of the
Employer and their beneficiaries.
(c) COMPENSATION UPON TERMINATION FOR CAUSE. If the
Executive's employment is terminated for Cause during the Employment Term, this
Agreement shall terminate without further obligation to the Executive, except
that the Employer shall pay or provide the Executive the sum of (i) the
Executive's Base Salary through the date of termination, (ii) the amount of any
compensation previously deferred by the Executive and (iii) Other Benefits, in
each case to the extent theretofore unpaid.
(d) COMPENSATION UPON TERMINATION WITHOUT GOOD REASON. If the
Executive's employment is terminated by the Executive without Good Reason during
the Employment Term, this Agreement shall terminate without further obligation
to the Executive, except that the Employer shall (i) pay the Accrued Obligations
to the Executive in a lump sum in cash within 30 days of the date of
termination; and (ii) timely pay or provide the Other Benefits.
(e) COMPENSATION UPON TERMINATION WITHOUT CAUSE OR FOR GOOD
REASON. If the Executive's employment by the Employer is terminated by the
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Employer other than for Cause in accordance with Section 8(d) hereof or by the
Executive for Good Reason in accordance with Section 8(e) hereof (i) the
Employer shall pay to the Executive a lump sum in cash within 30 days of the
date of termination in an amount equal to (x) the sum of (1) the Base Salary in
effect immediately prior to termination and (2) the greater of the Annual Bonus
paid or payable, including any bonus or portion thereof which has been earned
but deferred, for the most recently completed fiscal year during the Employment
Term or, if the Executive's termination of employment occurs during the first
year of the Employment Term, $80,000, multiplied by one and one-half, plus (y)
the Accrued Obligations; (ii) the Employer shall timely pay or provide the Other
Benefits; and (iii) the Employer shall continue to comply with its obligations
under Section 7(b) without regard to such termination.
(f) COMPENSATION UPON TERMINATION WITHOUT CAUSE OR FOR GOOD
REASON FOLLOWING A CHANGE OF CONTROL. If the Executive's employment by the
Employer is terminated by the Employer without Cause or by Executive for Good
Reason at any time during the Transition Period (as defined in Section 9(a)),
then the Employer shall pay or provide the Executive with the following payments
and benefits as soon as practical following the later of the date of the
Executive's termination or the date of the Change of Control but in no event
later than 30 days following the Change of Control (except as specifically
otherwise provided herein):
(i) the Employer 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:
(A) Accrued Obligations;
(B) a lump sum cash payment equal to three
times the sum of (x) Executive's Base Salary in effect
immediately prior to termination and (y) the highest Annual
Bonus paid or payable to the Executive during the three full
fiscal years prior to the Change of Control but in no event
less than 45% of the Executive's Base Salary in effect for
fiscal year 2001; and
(C) an amount equal to the excess of (x) the
actuarial equivalent of the benefit under the Employer'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 Change of Control), which the Executive would receive
if the Executive's employment continued for three 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 each of the three years is that
required by Sections 3 and 4, reduced by (y) 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 three 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
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or policy, the Employer 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 5(a) of this Agreement (including,
without limitation, the Employer's executive medical reimbursement
program) 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 any other peer executive of the Employer 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 three years after
the date of termination and to have retired on the last day of such
period;
(iii) the Employer 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 for the Executive, up to a maximum of
$30,000;
(iv) timely pay or provide the Other Benefits;
(v) the Employer shall cause all stock options to
purchase shares of Common Stock (including, without limitation, the
Option) and restricted shares of Common Stock held by or for the
benefit of the Executive to become immediately fully vested and/or
exercisable upon the occurrence of a Change of Control;
(vi) the Employer shall forgive all outstanding
indebtedness of the Executive to the Employer under any loan
arrangements or agreements entered into by the Employer and the
Executive pursuant to Section 7(b) hereof; and
(vii) notwithstanding anything to the contrary in
subparagraph (ii) above, for three years after the Executive's date of
termination, Executive shall be entitled, consistent with past
practice, to receive prompt reimbursement for the reasonable and
customary expenses incurred by the Executive for an automobile, plus
all expenses of maintaining and operating the automobile, provided that
all such expenses are accounted for in accordance with the policies and
procedures established by the Employer, or a monthly cash allowance in
lieu thereof.
10 EXCISE TAX. In the event that the Executive becomes entitled to
payments and/or benefits which would constitute "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, the provisions of Exhibit B shall
apply.
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11 STOCK OPTIONS AND COMPANY STOCK.
(a) In the event of the Executive's death, whether his death
occurs during or after the Employment Term, all unexercised and exercisable
stock options to purchase shares of Common Stock (including, without limitation,
the Option) will be assigned to his estate.
(b) In the event of the termination of the employment of the
Executive for any reason, all unexercised and exercisable stock options
(including, without limitation, the Option) must be exercised by him, or his
estate (or heir(s)) as the case may be, before the second anniversary of the
termination of his employment, but in no event after the tenth anniversary of
the date of grant thereof, and any such stock options not exercised by that date
will lapse immediately thereafter.
(c) In the event of any change in the number of issued shares
of Common Stock resulting from a subdivision or consolidation of shares or other
capital adjustment, or the payment of a stock dividend, or other increase or
decrease in such shares, then appropriate adjustments in the terms of any
unexercised stock options shall be made by the Stock Option Committee of the
Board.
12 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 Employer 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 Employer. 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 Employer 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.
13 LEGAL FEES. Following any termination of the Executive's employment
that gives rise to a right to payments and benefits under Section 9(f) or,
during the Transition Period, Sections 9(a) or 9(b), the Employer 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 Employer, 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.
14 NONCOMPETITION AND CONFIDENTIALITY.
(a) So long as the Executive is employed by the Employer under
this Agreement and unless this Agreement is terminated for any reason, the
Executive agrees not to enter into competitive endeavors.
-15-
(b) During the Employment Term and any period thereafter
during which or in respect of which the Executive receives payments from the
Employer under Section 9, the Executive shall hold in a fiduciary capacity for
the benefit of the Employer all secret or confidential information, knowledge or
data relating to the Employer, and their respective businesses, which shall have
been obtained by the Executive during the Executive's employment by the Employer
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 Employer, the Executive
shall not, without the prior written consent of the Employer 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 Employer and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 14 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under Section 9(f) or, during the Transition
Period, Sections 9(a) or 9(b) of this Agreement.
15 FULL SETTLEMENT. The Employer'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 Employer 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 9(f) or, during the Transition Period, Sections
9(a) or 9(b), if the Executive secures other employment, any benefits the
Employer 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 9(f) or, during the
Transition Period, Sections 9(a) or 9(b), such amounts shall not be reduced
whether or not the Executive obtains other employment.
16 SUCCESSORS; BINDING AGREEMENT.
(a) The Parent 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 Parent, 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
Employer would be required to perform it if no such succession had taken place.
Failure of the Parent 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 Employer 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, Parent shall mean the
Parent as herein before defined and any successor to its business and/or assets
as aforesaid which executes
-16-
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.
(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: 0000 Xxxx 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
If to the Employer: Superior TeleCom Inc.
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: General Counsel
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 Parent and the
Company as may be specifically designated 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 together with all exhibits and
attachments hereto 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 officer, 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.
22 INDEMNIFICATION. The Employer hereby covenants and agrees to
indemnify the Executive and hold him harmless to the fullest extent permitted by
law and under the By-laws of the Employer against and in respect to any and all
actions, suits, proceedings, claims, demands, judgments, costs, expenses
(including reasonable attorneys' fees), losses, and damages resulting from the
Executive's good faith performance of his duties and obligations hereunder. The
Employer, within 10 days of presentation of invoices, shall advance to the
Executive reimbursement of all legal fees and disbursements incurred by the
Executive in connection with any potentially indemnifiable matter. The Employer
will cover the Executive under directors' and officers' liability insurance both
during and, while potential liability exists (for such reasonable period taking
into account the applicable statute of limitations but in no event for less than
six years), after the Executive's termination of employment in the same amount
and to the same extent as the Employer covers its other officers and directors.
23. WITHHOLDING TAXES. The Employer may withhold from any and all
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
SUPERIOR TELECOM INC.
By: ________________________________________
Title:______________________________________
SUPERIOR TELECOMMUNICATIONS INC.
By: ________________________________________
Title: _____________________________________
XXXXXXX X. XXXXXXXXX
____________________________________________
-19-
EXHIBIT A
CHANGE OF CONTROL
1. For the purpose of this Agreement, a "Change of Control" shall mean the
occurrence of either a "SUT Change of Control" or an "Alpine Change of Control."
2. For purposes of this Agreement, a "SUT Change of Control" shall mean the
occurrence of any of the following events at a time when or as a result of which
Alpine owns less than 50% of the Outstanding Parent Voting Securities (as
defined below):
(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")), other than Alpine (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of voting securities of the Parent 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 Parent entitled to vote generally in the election of
directors (the "Outstanding Parent 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
Parent, (ii) any acquisition by the Parent, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Parent
or any corporation controlled by the Parent or (iv) any acquisition by any
corporation pursuant to a transaction that complies with clauses (i), (ii) and
(iii) of subsection (c) below; and provided, further, that if any Person's
beneficial ownership of the Outstanding Parent 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 Parent, such subsequent acquisition shall be
treated as an acquisition that causes such Person to own more than 20% or more
of the Outstanding Parent 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 Parent'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
Parent or the acquisition of assets of another corporation ("Business
Combination"); excluding, however, such a Business Combination pursuant to which
(i) all or substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Parent Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then
A-1
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 Parent or all or substantially all of the Parent'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 Parent Voting Securities, (ii) no Person
(excluding any employee benefit plan (or related trust) of the Parent or 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 Business Combination except to the extent that such Person
owned 20% or more of the Outstanding Parent Voting Securities 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 Parent of a complete
liquidation or dissolution of the Parent.
3. For purposes of this Agreement, an "Alpine Change of Control" shall mean the
occurrence of any of the following events:
(a) the acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of voting securities
of Alpine 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 Alpine
entitled to vote generally in the election of directors (the "Outstanding Alpine
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 Alpine, (ii) any acquisition by
Alpine, (iii) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by Alpine or any corporation controlled by Alpine or
(iv) any acquisition by any corporation pursuant to a transaction that complies
with clauses (i), (ii) and (iii) of subsection (c) below; and provided, further,
that if any Person's beneficial ownership of the Outstanding Alpine 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 Alpine, such subsequent
acquisition shall be treated as an acquisition that causes such Person to own
more than 20% or more of the Outstanding Alpine Voting Securities; or
(b) individuals who, as of the date hereof, constitute the Alpine Board
(the "Incumbent Alpine Board") cease for any reason to constitute at least a
majority of the Alpine Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by Alpine's shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Alpine Board shall be considered
as though such individual were a member of the Incumbent Alpine 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
A-2
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Alpine 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 Alpine or
the acquisition of assets of another corporation ("Alpine Business
Combination"); excluding, however, such an Alpine Business Combination pursuant
to which (i) all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding Alpine Voting Securities immediately
prior to such Alpine Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and 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 Alpine Business Combination
(including, without limitation, a corporation that as a result of such
transaction owns Alpine or all or substantially all of Alpine's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Alpine Business
Combination of the Outstanding Alpine Voting Securities, (ii) no Person
(excluding any employee benefit plan (or related trust) of Alpine or such
corporation resulting from such Alpine 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 Alpine
Business Combination or the combined voting power of the then outstanding voting
securities of such Alpine Business Combination except to the extent that such
Person owned 20% or more of the Outstanding Alpine Voting Securities prior to
the Alpine Business Combination and (iii) at least a majority of the members of
the board of directors of the corporation resulting from such Alpine Business
Combination were members of the Incumbent Alpine Board at the time of the
execution of the initial agreement, or of the action of the Alpine Board,
providing for such Alpine Business Combination; or
(d) approval by the shareholders of Alpine of a complete liquidation or
dissolution of Alpine.
A-3
EXHIBIT B
GOLDEN PARACHUTE PROVISIONS
(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 Employer 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 Exhibit B) (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 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, 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 paragraph (c), all determinations
required to be made under this Exhibit B, 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 Parent 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 Parent. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control or other change of ownership as defined under
Section 280G of the Code, 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 Parent.
Any Gross-Up Payment, as determined pursuant to this Exhibit B, shall be paid by
the Parent to the Executive within five days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be binding
upon the Employer 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 Parent should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Parent exhausts its remedies pursuant to paragraph (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 Parent to or for the
benefit of the Executive.
B-1
(c) The Executive shall notify the Parent in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Parent 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 Parent 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 Parent (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Parent notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Parent any information reasonably requested by
the Parent relating to such claim,
(ii) take such action in connection with contesting such claim
as the Parent 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 Parent,
(iii) cooperate with the Parent in good faith in order
effectively to contest such claim, and
(iv) permit the Parent to participate in any proceedings
relating to such claim;
provided, however, that the Parent 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 paragraph (c), the Parent 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
Parent shall determine; provided, however, that if the Parent directs the
Executive to pay such claim and xxx for a refund, the Parent 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 Parent'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.
B-2
(d) If, after the receipt by the Executive of an amount advanced by the
Parent pursuant to paragraph (c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Parent's
complying with the requirements of paragraph (c)) promptly pay to the Parent 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 Parent pursuant to paragraph (c), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Parent 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.
B-3
