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EXHIBIT 10.24
AMENDED AND RESTATED
SEVERANCE COMPENSATION AGREEMENT
AMENDED AND RESTATED SEVERANCE COMPENSATION AGREEMENT dated as of
[Date1], between DSC COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Company"), and [FirstName] [LastName] (the "Executive").
WHEREAS, the Company's Board of Directors has determined that it is
appropriate to reinforce and encourage the continued attention and dedication
of members of the Company's management, including the Executive, to their
assigned duties without distraction in potentially disturbing circumstances
arising from the possibility of a change in control of the Company; and
WHEREAS, the Company has previously entered into an Amended and
Restated Severance Compensation Agreement with the Executive dated as of
[Date2], as from time to time amended (the "Prior Severance Agreement"); and
WHEREAS, the Company's Board of Directors has determined that it is in
the best interest of the Company and its stockholders to clarify and modify the
Prior Severance Agreement and to enter into this Amended and Restated Severance
Compensation Agreement (the "Agreement") incorporating such modifications and
clarifications and replacing and superseding the Prior Severance Agreement.
NOW, THEREFORE, this Agreement sets forth the severance compensation
which the Company agrees it will pay to the Executive if the Executive's
employment with the Company terminates under certain circumstances described
herein following a Change in Control (as defined herein) and the other benefits
the Company will provide the Executive following a Change in Control.
1. TERM.
This Agreement shall terminate, except to the extent that any
obligation of the Company hereunder remains unpaid as of such time, upon the
earlier of (i) the termination of Executive's employment for any reason prior
to a Change in Control; and (ii) three years after the date of a Change in
Control.
2. CHANGE IN CONTROL.
For purposes of this Agreement, Change in 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 "Person"), of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then-outstanding
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shares of common stock of the Company (the "Outstanding Company Common Stock")
or (ii) 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 the following
acquisitions shall not constitute a Change in Control: (A) any acquisition
directly from the Company (excluding an acquisition by virtue of the exercise
of a conversion privilege), (B) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (C) any acquisition by any corporation pursuant to
a reorganization, merger or consolidation, if, following such reorganization,
merger or consolidation, the conditions described in subclauses (i), (ii) and
(iii) of clause (c) of this sentence are satisfied; or
(b) if individuals who, as of the date hereof, constitute the
Board of Directors (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 stockholders, was approved by a vote of at least
two-thirds of the directors then constituting 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 either an actual or threatened election contest
subject to Rule 14a- 11 of Regulation 14A promulgated under the Exchange Act or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(c) approval by the stockholders of the Company of a
reorganization, merger or consolidation, unless following such reorganization,
merger or consolidation (i) more than 60% of, respectively, the
then-outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such
reorganization, merger, or consolidation in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger or
consolidation, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be (for purposes of determining whether such
percentage test is satisfied, there shall be excluded from the number of shares
and voting securities of the resulting corporation owned by the Company's
stockholders, but not from the total number of outstanding shares and voting
securities of the resulting corporation, any shares or voting securities
received by any such stockholder in respect of any consideration other than
shares or voting securities of the Company), (ii) no Person (excluding the
Company, any employee benefit plan (or related trust) of the Company, any
qualified employee benefit plan of such corporation resulting from such
reorganization, merger or consolidation and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or
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indirectly, 20% or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then-outstanding
shares of common stock of the corporation resulting from such reorganization,
merger or consolidation or the combined voting power of the then-outstanding
voting securities of such corporation entitled to vote generally in the
election of directors and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the execution
of the initial agreement providing for such reorganization, merger or
consolidation; or
(d) (i) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company or (ii) the first to occur of (A) the
sale or other disposition (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company, or (B)
the approval by the stockholders of the Company of any such sale or
disposition, other than, in each case, any such sale or disposition to a
corporation, with respect to which immediately thereafter, (1) more than 60%
of, respectively, the then-outstanding shares of common stock of such
corporation and the combined voting power of the then-outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition
in substantially the same proportion as their ownership, immediately prior to
such sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be (for purposes of
determining whether such percentage test is satisfied, there shall be excluded
from the number of shares and voting securities of the transferee corporation
owned by the Company's stockholders, but not from the total number of
outstanding shares and voting securities of the transferee corporation, any
shares or voting securities received by any such stockholder in respect of any
consideration other than shares or voting securities of the Company), (2) no
Person (excluding the Company and any employee benefit plan (or related trust)
of the Company, any qualified employee benefit plan of such transferee
corporation and any Person beneficially owning, immediately prior to such sale
or other disposition, directly or indirectly, 20% or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities, as the case may
be) beneficially owns, directly or indirectly, 20% or more of, respectively,
the then-outstanding shares of common stock of such transferee corporation and
the combined voting power of the then-outstanding voting securities of such
transferee corporation entitled to vote generally in the election of directors
and (3) at least a majority of the members of the board of directors of such
transferee corporation were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the board providing for such
sale or other disposition of assets of the Company.
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3. TERMINATION FOLLOWING A CHANGE IN CONTROL.
(a) The Executive shall be entitled to the compensation provided
in Section 4 of this Agreement if all of the following conditions are
satisfied:
(i) there is a Change in Control of the Company while the
Executive is still an employee of the Company;
(ii) the Executive's employment with the Company is terminated
within two years after the Change in Control; and
(iii) the Executive's termination of employment is not a result of
(A) the Executive's death; (B) the Executive's Disability (as defined
in Section 3(b) below; (C) the Executive's Retirement (as defined in
Section 3(c) below); (D) the Executive's termination by the Company
for Cause (as defined in Section 3(d) below); or (E) the Executive's
decision to terminate employment other than for Good Reason (as
defined in Section 3(e) below).
(b) If, as a result of the Executive's incapacity due to physical
or mental illness, the Executive shall have been unable, with or without a
reasonable accommodation, to perform his duties with the Company on a full-time
basis for six months and within 30 days after a Notice of Termination (as
defined in Section 3(f) below) is thereafter given by the Company, the
Executive shall not have returned to the full-time performance of the
Executive's duties, the Company may terminate the Executive's employment for
"Disability". If there is a Change in Control of the Company while the
Executive is still an employee and if the Executive's employment with the
Company is terminated for Disability within two years after the Change in
Control, the Executive shall be entitled to receive in a lump sum cash payment
within five days after his Date of Termination (as defined in Section 3(g)
below) the following:
(i) two times his annual base salary, at the annual rate in effect
immediately prior to the Date of Termination; plus
(ii) his earned but unpaid base salary through his Date of
Termination; plus
(iii) an annual incentive award for the current fiscal year prorated
through the Date of Termination equal to the greater of (A) the annual
incentive award (whether paid or payable in cash or in securities of
the Company) awarded to the Executive with respect to the Company's
most recent fiscal year ending prior to the Date of Termination or (B)
the average annual incentive award (whether paid or payable in cash or
in securities of the Company) made to the Executive with respect to
the Company's most recent three fiscal years ending prior to the Date
of Termination; plus
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(iv) interest on the amounts payable pursuant to clauses (i), (ii)
and (iii) above calculated from the Date of Termination until paid at
a rate equal to the prime rate as published in The Wall Street Journal
on the Date of Termination plus three percentage points.
(c) The term "Retirement" as used in this Agreement shall mean
termination by the Company or the Executive of the Executive's employment based
on the Executive's having reached age 65 or such other age as shall have been
fixed in any arrangement established pursuant to this Agreement with the
Executive's consent with respect to the Executive.
(d) The Company may terminate the Executive's employment for
Cause. For purposes of this Agreement only, "Cause" shall mean: (i) the
Executive's conviction of a felony involving moral turpitude; or (ii) the
Executive's serious, willful gross misconduct or willful gross neglect of
duties (other than any such neglect resulting from the Executive's incapacity
due to physical or mental illness or any such neglect after the issuance of a
Notice of Termination by the Executive for Good Reason, as such terms are
defined in subsections (e) and (f) below), which, in either case, has resulted,
or in all probability is likely to result, in material economic damage to the
Company; provided no act or failure to act by the Executive will constitute
"Cause" under clause (ii) if the Executive believed in good faith that such act
or failure to act was in the best interest of the Company.
Any termination of the Executive's employment by the Company for Cause
shall be authorized by a vote of at least a majority of the non-employee
members of the Board of Directors of the Company (the "Board") within 12 months
of a majority of such non-employee members of the Board having actual knowledge
of the event or circumstances providing a basis for such termination. In the
case of clause (ii) of the second sentence of this subsection (d), the
Executive shall be given notice by the Board specifying in detail the
particular act or failure to act on which the Board is relying in proposing to
terminate him for Cause and offering the Executive an opportunity, on a date at
least 14 days after receipt of such notice, to have a hearing, with counsel,
before a majority of the non-employee members of the Board, including each of
the members of the Board who authorized the termination for Cause. The
Executive shall not be terminated for Cause if, within 30 days after the date
of the Executive's hearing before the Board (or if the Executive waives a
hearing, within 30 days after receiving notice of the proposed termination), he
has corrected the particular act or failure to act specified in the notice and
by so correcting such act or failure to act he has reduced the economic damage
his act or failure to act has allegedly caused the Company to a level which is
no longer material or has eliminated the probability that such act or failure
to act is likely to result in material economic damage to the Company. No
termination for Cause shall take effect until the expiration of the correction
period described in the preceding sentence and the determination by a majority
of the non-employee members of the Board that the Executive has failed to
correct the act or failure to act in accordance with the terms of the preceding
sentence.
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Anything herein to the contrary notwithstanding, if, following a
termination of the Executive's employment by the Company for Cause based upon
the conviction of the Executive for a felony involving moral turpitude such
conviction is finally overturned on appeal, the Executive shall be entitled to
the compensation provided in Sections 4(a) and 4(c). In lieu of the interest
provided in clause (iv) of the first sentence of Section 4(a) and the interest
provided in the second sentence of Section 4(c), however, the compensation
provided in Sections 4(a) and 4(c) shall be increased by a ten percent rate of
interest, compounded annually, calculated from the date such compensation would
have been paid if the Executive's employment had been terminated without Cause.
(e) The Executive may terminate the Executive's employment for
Good Reason at any time following a Change in Control. For purposes of this
Agreement, "Good Reason" shall mean, after any Change in Control and without
the Executive's express written consent, any of the following:
(i) a significant diminution in the Executive's duties and
responsibilities, or the assignment to the Executive by the Company of
duties inconsistent with the Executive's position, duties,
responsibilities or status with the Company immediately prior to a
Change in Control of the Company, or a change in the Executive's
titles or offices as in effect immediately prior to a Change in
Control of the Company, or any removal of the Executive from or any
failure to re-elect the Executive to any of such positions, except in
connection with the termination of his employment for Disability,
Retirement or Cause or as a result of the Executive's death or by the
Executive other than for Good Reason;
(ii) a reduction by the Company in the Executive's annual rate of
base salary as in effect on the date hereof or as the same may be
increased from time to time during the term of this Agreement or the
Company's failure to increase (within 12 months of the Executive's
last increase in his annual rate of base salary) the Executive's
annual rate of base salary after a Change in Control of the Company in
an amount which at least equals, on a percentage basis, the greater of
(A) the average percentage increase in the annual rate of base salary
for all officers of the Company effected in the preceding 12 months;
or (B) the Consumer Price Index as published by the United States
Government (or, in the event such index is discontinued, any similar
index published by the United States Government as designated in good
faith by the Executive); provided, however, that nothing contained in
this clause (ii) shall be construed under any circumstances as
permitting the Company to decrease the Executive's annual rate of base
salary;
(iii) (A) any failure by the Company to continue in effect any
benefit plan or arrangement (including, without limitation, the
Company's Employee Stock Purchase Plan, the DSC Communications
Corporation Savings & Retirement Plan, the DSC Communications
Corporation Executive Deferred Income Plan, the DSC Communications
Corporation Restoration Plan, the DSC Communications Corporation
Supplemental Executive Retirement Plan and life insurance, medical,
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dental, accident and disability plans) in which the Executive is
participating at the time of a Change in Control of the Company, or
any other plan or arrangement providing the Executive with benefits
that are no less favorable (hereinafter referred to as "Benefit
Plans"), (B) the taking of any action by the Company which would
adversely affect the Executive's participation in or materially reduce
the Executive's benefits under any such Benefit Plan or deprive the
Executive of any material fringe benefit or perquisite of office
enjoyed by the Executive at the time of a Change in Control of the
Company, unless in the case of either subclause (A) or (B) above,
there is substituted a comparable plan or program that is economically
equivalent, in terms of the benefit offered to the Executive, to the
Benefit Plan being altered, reduced, affected or ended;
(iv) (A) any failure by the Company to continue in effect any
incentive plan or arrangement (including, without limitation, the
Company's bonus and contingent bonus arrangements, including the
supplemental compensation policy of the Company, and credits and the
right to receive performance awards and similar long and short-term
incentive compensation benefits) in which the Executive is
participating at the time of a Change in Control of the Company, or
any other plans or arrangements providing him with substantially
similar benefits, (hereinafter referred to as "Incentive Plans"), (B)
the taking of any action by the Company which would adversely affect
the Executive's participation in any such Incentive Plan or reduce the
Executive's benefits under any such Incentive Plan, unless in the case
of either subclause (A) or (B) above, there is substituted a
comparable plan or program that is economically equivalent, in terms
of the benefit offered to the Executive, to the Incentive Plan being
altered, reduced, affected or ended, or (C) any failure by the Company
with respect to any fiscal year to make an award to the Executive
pursuant to each such Incentive Plan or such substituted comparable
plan or program equal to or greater than the greater of (1) the award
(whether paid or payable in cash or in securities of the Company) made
to the Executive pursuant to such Incentive Plan or such substituted
comparable plan or program with respect to the immediately preceding
fiscal year or (2) the average annual award (whether paid or payable
in cash or in securities of the Company) made to the Executive
pursuant to such Incentive Plan or such substituted comparable plan
with respect to the prior three fiscal years (or such lesser number of
prior fiscal years that the Executive was employed by the Company or
that the Incentive Plan (together with any substituted comparable
plan) was maintained);
(v) (A) any failure by the Company to continue in effect any plan
or arrangement to receive securities of the Company (including,
without limitation, the Company's 1979 Stock Option Plan, 1981 Stock
Option Plan, 1984 Employee Stock Option Plan, 1988 Employee Stock
Option Plan, 1993 Employee Stock Option and Securities Award Plan, and
any other plan or arrangement to receive and exercise stock options,
stock appreciation rights or securities awards) in which the Executive
is participating at the time of a Change in Control of the Company, or
any other plan or arrangement providing him with substantially similar
benefits,
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(hereinafter referred to as "Securities Plans"), (B) the taking of any
action by the Company which would adversely affect the Executive's
participation in or materially reduce the Executive's benefits under
any such Securities Plan, unless in the case of either subclause (A)
or (B) above, there is substituted a comparable plan or program that
is economically equivalent, in terms of the benefit offered to the
Executive, to the Securities Plan being altered, reduced, affected or
ended, or (C) any failure by the Company in any fiscal year to grant
stock options, stock appreciation rights or securities awards to the
Executive pursuant to such Securities Plans with respect to an
aggregate number of securities of the Company of each kind that is
equal to or greater than the greater of (1) the aggregate number of
securities of the Company of that kind covered by stock options, stock
appreciation rights or securities awards granted to the Executive
pursuant to such Securities Plans in the immediately preceding fiscal
year or (2) the average annual aggregate number of securities of the
Company of that kind covered by stock options, stock appreciation
rights, or securities awards granted to the Executive pursuant to such
Securities Plans in the prior three fiscal years; and provided further
the material terms and conditions of such stock options, stock
appreciation rights, and securities awards granted to the Executive
after the Change in Control (including, but not limited to, the
exercise price, vesting schedule, period and methods of exercise,
expiration date, forfeiture provisions and other restrictions) are
substantially similar to the material terms and conditions of the
stock options, stock appreciation rights, and securities awards
granted to the Executive under the Securities Plans immediately prior
to the Change in Control of the Company;
(vi) a relocation of the Company's principal executive offices to a
location more than 50 miles outside of Plano, Texas, or the
Executive's relocation more than 50 miles from the location at which
the Executive performed the Executive's duties prior to a Change in
Control of the Company, except for required travel by the Executive on
the Company's business to an extent substantially consistent with the
Executive's business travel obligations at the time of a Change in
Control of the Company;
(vii) any failure by the Company to provide the Executive with the
number of annual paid vacation days to which the Executive is entitled
for the year in which a Change in Control of the Company occurs;
(viii) any material breach by the Company of any provision of this
Agreement;
(ix) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company;
(x) the Company or its successor no longer is required to have its
common stock registered pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended;
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(xi) any failure by the Company or its successor to enter into an
agreement with the Executive that is substantially similar to this
Agreement with respect to a Change in Control of the Company or its
successor occurring thereafter; or
(xii) any purported termination of the Executive's employment by the
Company pursuant to Section 3(b), 3(c) or 3(d) above which is not
effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f) below (and, if applicable, Section 3(d)
above), and for purposes of this Agreement, no such purported
termination shall be effective.
For purposes of this subsection (e), an isolated, immaterial, and inadvertent
action not taken in bad faith by the Company in violation of clause (ii),
(iii), (iv), (v) or (vii) of this subsection that is remedied by the Company
promptly after receipt of notice thereof given by the Executive shall not be
considered Good Reason for the Executive's termination of employment with the
Company. In the event the Executive terminates his employment for Good Reason
hereunder, then notwithstanding that the Executive may also retire for purposes
of the Benefit Plans, Incentive Plans or Securities Plans, the Executive shall
be deemed to have terminated his employment for Good Reason for purposes of
this Agreement.
(f) Any termination of the Executive by the Company pursuant to
Section 3(b), 3(c) or 3(d) above, or by the Executive pursuant to Section 3(e)
above, shall be communicated by a Notice of Termination to the other party
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate those specific termination provisions in
this Agreement relied upon and which 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. For purposes of this Agreement,
no such purported termination by the Company shall be effective without such
Notice of Termination.
(g) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by the Company for Disability, 30 days after Notice of
Termination is given to the Executive (provided that the Executive shall not
have returned to the performance of the Executive's duties on a full-time basis
during such 30-day period), (ii) if the Executive's employment is terminated by
the Executive for Good Reason, the date specified in the Notice of Termination,
and (iii) if the Executive's employment is terminated by the Company 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 to the
Executive by the Company, the Executive notifies the Company that a dispute
exists concerning the termination, the Date of Termination shall be the date
the dispute is finally determined, whether by mutual written agreement of the
parties or upon final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected).
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4. SEVERANCE COMPENSATION UPON TERMINATION OF EMPLOYMENT.
(a) If pursuant to Section 3(a) above the Executive is entitled to
the compensation provided in this Section 4, then the Company shall pay to the
Executive in a lump sum cash payment within five days after the Date of
Termination the following:
(i) the Severance Amount as defined in Section 4(b) below; plus
(ii) his earned but unpaid base salary through his Date of
Termination; plus
(iii) an annual incentive award for the current fiscal year prorated
through the Date of Termination equal to the greater of (A) the annual
incentive award (whether paid or payable in cash or in securities of
the Company) awarded to the Executive with respect to the Company's
most recent fiscal year ending prior to the Date of Termination or (B)
the average annual incentive award (whether paid or payable in cash or
in securities of the Company) made to the Executive with respect to
the Company's most recent three fiscal years ending prior to the Date
of Termination; plus
(iv) interest on the amounts payable pursuant to clauses (i), (ii)
and (iii) above calculated from the Date of Termination until paid at
a rate equal to the prime rate as published in The Wall Street Journal
on the Date of Termination plus three percentage points, compounded
annually.
(b) "Severance Amount" shall mean an amount equal to three times
the Base Amount (as defined below) determined with respect to the Base Period
(as defined below); provided, however, in no event shall the Severance Amount
be less than three times the Executive's annual rate of base salary at the
higher of the annual rate in effect (i) immediately prior to the Date of
Termination or (ii) on the date six months prior to the Date of Termination.
For purposes of this subsection (b):
(i) "Base Amount" means the Executive's average annual
Compensation (as defined below) for taxable years of the Executive in
the Base Period. If the Executive's Base Period includes a short
taxable year, Compensation for such short or incomplete taxable year
shall be annualized before determining the average annual Compensation
for the Base Period. In annualizing Compensation, the frequency with
which payments are expected to be made over an annual period shall be
taken into account. Thus, any amount of Compensation for such a short
or incomplete taxable year that represents a payment that will not be
made more often than once per year is not annualized. Set forth on
Appendix A, which is attached hereto and made a part hereof, are two
examples illustrating the calculation of the Base Amount.
(ii) "Base Period" means the most recent five taxable years of the
Executive ending prior to the Date of Termination. If the Executive
was not an employee of
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the Company (or a predecessor entity or a related entity, as such
terms are defined in clause (iii) below) for this entire five-year
period, the Executive's Base Period is the portion of such five-year
period during which the Executive was an employee of the Company or a
predecessor entity or a related entity.
(iii) "Compensation" means the compensation which was payable by the
Company, by a predecessor entity, or by a related entity and which was
includible in the gross income of the Executive (or either was
excludible from such gross income as "foreign earned income" within
the meaning of Section 911 of the Internal Revenue Code of 1986, as
amended (the "Code"), or would have been includible in such gross
income if the Executive had been a United States citizen or resident).
Notwithstanding the preceding sentence, Compensation shall be
determined without regard to any compensation deferral election under
any plan, program or arrangement, qualified or nonqualified,
maintained or contributed to by the Company, a predecessor entity or a
related entity, including but not limited to a cash-or-deferred
arrangement described in Code Section 401(k), a cafeteria plan
described in Code Section 125 or a nonqualified deferred compensation
plan. A "predecessor entity" is any entity which, as a result of a
merger, consolidation, purchase or acquisition of property or stock,
corporate separation, or other similar business transaction transfers
some or all of its employees to the Company or to a related entity or
to a predecessor entity of the Company. The term "related entity"
includes any entity treated as a single employer with the Company in
accordance with subsections (b), (c), (m) and (o) of Code Section 414.
(c) If pursuant to Section 3(a) above the Executive is entitled to
the compensation provided in this Section 4, then notwithstanding the terms and
conditions of the DSC Communications Corporation Supplemental Executive
Retirement Plan (the "SERP"), the Executive shall be entitled to receive a
"deferred vested benefit" under the SERP, and for purposes of calculating such
"deferred vested benefit" (i) the Executive shall be credited with three
additional years of "benefit service" under the SERP, and (ii) for purposes of
calculating his "highest average annual earnings" under the SERP, the Executive
shall be deemed to have "earnings" in each of three calendar years of deemed
employment with the Company equal to the greater of (A) his "earnings" for the
calendar year ending immediately prior to the Date of Termination or (B) his
average annual "earnings" for the most recent three calendar years ending prior
to the Date of Termination (or such lesser number of calendar years ending
prior to the Date of Termination that the Executive was employed by the
Company). If the Executive is eligible for retirement on a "retirement date"
under the SERP, his "deferred vested benefit" shall be in lieu of and in
substitution for any other benefit payable to the Executive under the SERP
because of his retirement on a "retirement date". The terms "deferred vested
benefit", "benefit service", "highest average annual earnings", "earnings" and
"retirement date" as used in this subsection (c) shall have the same meanings
as defined and used in the SERP. The Company shall also pay the Executive
interest on his deferred vested benefit calculated from the Date of Termination
until the deferred vested benefit is paid to the Executive at a rate equal to
the prime rate as published in The Wall
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Street Journal on the Date of Termination plus three percentage points,
compounded annually.
(d) If the Executive is entitled to receive a deferred vested
benefit under the SERP pursuant to Section 4(c) above, the Company shall also
pay the Executive an additional payment (the "SERP Gross-Up Payment") equal to
his deferred vested benefit, determined in accordance with Section 4(c) above,
multiplied by the following:
1
____________________ minus 1
(1 minus Rates)
where "Rates" means the sum of the Cumulative FIT Gross-Up Rate, the FICA Rate
and the SIT Rate. For purposes of the preceding sentence, the following terms
have the respective meanings set forth below:
(i) "Cumulative FIT Gross-Up Rate" means the rate determined as
the following:
1
1 minus ______________________________
(1 + FIT Gross-Up Rate)
(ii) "FICA Rate" means the rate of tax under the Federal Insurance
Contributions Act (including but not limited to the tax rate
attributable to the old-age, survivors, and disability insurance and
the tax rate attributable to the hospital insurance) imposed on income
on the date of payment of the Executive's deferred vested benefit.
(iii) "FIT Gross-Up Rate" means the gross-up rate required to
calculate the amount by which the Executive's deferred vested benefit,
determined in accordance with Section 4(c) above, must be increased to
defray the following: (A) the amount of federal income tax imputed on
the Executive's deferred vested benefit on the date of payment; (B)
the amount of federal income tax imputed on the investment income
earned on the Executive's after-tax deferred vested benefit during the
period commencing on the date of payment of the Executive's deferred
vested benefit and ending on the last day of the month in which the
Executive attains age 65 and assuming an investment earnings rate of
7.5 percent ; and (C) the amount of federal income tax imputed on the
annuity payments that would be paid to the Executive if the Executive
purchased an annuity at age 65, with annuity payments commencing with
the month following his attainment of age 65, using the after-tax
accumulated value of his deferred vested benefit. For purposes of
determining the FIT Gross-Up Rate, federal income tax shall be
determined using the highest individual federal income tax rate in
effect on the date of payment of the Executive's deferred vested
benefit. Actuarial equivalence and annuity
- 12 -
13
purchase rates shall be computed using a 7.5 percent interest rate and
the mortality tables adopted by the plan administrator of the SERP for
purposes of calculated deferred vested benefits under the SERP.
(iv) "SIT Rate" means the highest individual state income tax rate
in the Executive's state of residence on the date of payment of the
Executive's deferred vested benefit.
Set forth on Appendix B, which is attached hereto and made a part hereof, is an
example illustrating the calculation of the SERP Gross-Up Payment. The
determination of the amount of the SERP Gross-Up Payment shall be made by the
Company's independent auditors (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive. The
determination made by the Accounting Firm shall be subject to review by the
Executive's tax advisor, and, if the Executive's tax advisor does not agree
with the determination reached by the Accounting Firm, then the Accounting Firm
and the Executive's tax advisor shall jointly designate a nationally recognized
public accounting firm which shall make the determination. All fees and
expenses of the accountants and tax advisors retained by both the Executive and
the Company shall be borne solely by the Company. Any determination by such
jointly designated public accounting firm shall be binding upon the Company and
the Executive. The Company shall also pay the Executive interest on his SERP
Gross-Up Payment calculated from the Date of Termination until the SERP
Gross-Up Payment is paid to the Executive at a rate equal to the prime rate as
published in The Wall Street Journal on the Date of Termination plus three
percentage points, compounded annually.
(e) If pursuant to Section 3(a) above the Executive is entitled to
the compensation provided in this Section 4, then the Executive will be
entitled to continued participation in all employee benefit plans or programs
available to Company employees generally in which the Executive was
participating on the Date of Termination, such continued participation to be at
Company cost and otherwise on the same basis as Company employees generally,
until the earlier of (i) the date, or dates, he receives equivalent coverage
and benefits under the plans and programs of a subsequent employer (such
coverages and benefits to be determined on a coverage-by-coverage or
benefit-by-benefit basis) or (ii) two years from the Date of Termination;
provided (A) if the Executive is precluded from continuing his participation in
any employee benefit plan or program as provided in this sentence, he shall be
paid, in a lump sum cash payment, within 30 days following the date it is
determined he is unable to participate in any employee benefit plan or program,
the after-tax economic equivalent of the benefits provided under the plan or
program in which he is unable to participate for the period specified in this
sentence, and (B) the economic equivalent of any benefit foregone shall be
deemed to be the lowest cost that would be incurred by the Executive in
obtaining such benefit for himself (including family or dependent coverage, if
applicable) on an individual basis. The Executive shall be eligible for group
health plan continuation coverage under and in accordance with the Consolidated
Omnibus Budget Reconciliation
- 13 -
14
Act of 1985, as amended, when he ceases to be eligible for continued
participation in the Company's group health plan under this subsection (e).
5. NO OBLIGATION TO MITIGATE DAMAGES;
NO EFFECT ON OTHER CONTRACTUAL RIGHTS.
(a) The Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for under
this Agreement be reduced by any compensation earned by the Executive as the
result of employment by another employer after the Date of Termination or
otherwise.
(b) Except as otherwise provided in Section 4(c) above with
respect to benefits that would otherwise be payable to the Executive under the
SERP because of the Executive's retirement on a retirement date under the SERP,
the provisions of this Agreement, and any payment provided for hereunder, shall
not reduce any amounts otherwise payable, or in any way diminish the
Executive's existing rights, or rights which would accrue solely as a result of
the passage of time, under any Benefit Plan, Incentive Plan or Securities Plan,
employment agreement or other contract, plan or agreement with or of the
Company.
6. OPTIONS, SECURITIES AWARDS, AND INCENTIVE AWARDS.
(a) In the event of a Change in Control of the Company, then
notwithstanding the terms and conditions of any Securities Plan or other plan,
agreement or arrangement, the Company agrees to accelerate, vest, and make
immediately exercisable in full all unexercisable installments of all options
to acquire securities of the Company, to vest all unvested awards of securities
of the Company and to waive any resale or other restrictions or rights of
repurchase applicable to securities underlying such options or applicable to
awards of securities of the Company, in each case which are held by the
Executive on the date of such Change in Control, including without limitation
any options or securities obtained by the Executive pursuant to any Securities
Plan or securities obtained by the Executive pursuant to any Incentive Plan.
(b) Any options or securities obtained by the Executive pursuant
to any Securities Plan or securities obtained by the Executive pursuant to any
Incentive Plan shall have a limited right of surrender allowing the Executive
to surrender such options or securities within the 30-day period following a
Change in Control and to receive a cash payment in exchange for the surrender
of such options or securities. The amount of such payment shall be equal to
the sum of (i) the product of the number of securities multiplied by the
greater of (x) the fair market value of the securities of the Company on the
date prior to the Change in Control or (y) the per share price paid to
shareholders in connection with such Change in Control (alternatively, the
"Securities Price") and (ii) the product of (a) the number of securities
covered by options multiplied by (b) the Securities Price reduced by the
exercise price. Notwithstanding the foregoing, if any such payment
- 14 -
15
would result in liability under Section 16 of the Exchange Act, the right of
surrender shall commence upon the earliest date it can be exercised by the
Executive without liability and continue for thirty days thereafter.
(c) In the event of a Change in Control of the Company, then
notwithstanding the terms and conditions of any Incentive Plan, the Company
agrees (i) to immediately and fully vest all unvested awards, units, and
benefits which have been awarded or allocated to the Executive under the
Incentive Plans; and (ii) upon the exercise of such awards or units or the
distribution of such benefits, to pay all amounts due under the Incentive Plans
solely in cash.
7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding, 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 7) (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.
(b) All determinations required to be made under this Section 7,
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 the the Accounting Firm which shall provide
detailed supporting calculations both to the Company and the Executive within
15 business days after the receipt of notice from the Executive that there has
been a Payment, or such earlier time as is requested by the Company. The
determination of tax liability made by the Accounting Firm shall be subject to
review by the Executive's tax advisor, and, if the Executive's tax advisor does
not agree with the determination reached by the Accounting Firm, then the
Accounting Firm and the Executive's tax advisor shall jointly designate a
nationally recognized public accounting firm which shall make the
determination. All fees and expenses of the accountants and tax advisors
retained by both the Executive and the Company shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this Section 7, shall
be paid by the Company to the Executive within five days after the receipt of
the determination. Any determination by such jointly designated public
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
- 15 -
16
hereunder, it is possible that Gross-Up Payments will not have been made by the
Company that should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Executive
hereafter is required to make a payment of any Excise Tax, any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive. Upon notice by the Executive of any audit or other proceeding that
may result in a liability to the Company hereunder, the Executive shall
promptly notify the Company of such audit or other proceeding; and the Company
may, at its option, but solely with respect to the item or items that relate to
such potential liability, choose to assume the defense of such audit or other
proceeding at its own cost, provided that (i) the Executive shall cooperate
with the Company in such defense and (ii) the Company will not settle such
audit or other proceeding without the consent of the Executive (such consent
not to be unreasonably withheld). The highest effective marginal tax rate
(determined by taking into account any reduction in itemized deductions and/or
exemptions attributable to the inclusion of the additional amounts payable
under this Section 7 in the Executive's adjusted gross or taxable income) based
upon the state and locality where the Executive is resident at the time of
payment of such amounts will be used for purposes of determining the federal
and state income and other taxes with respect thereto.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify the Executive to the fullest
extent permitted by applicable law consistent with the Company's Certificate of
Incorporation and By-Laws in effect as of the date hereof with respect to any
acts or non-acts he may have committed on behalf of the Company during the
period in which he was an officer, director and/or employee of the Company or
any subsidiary thereof, or of any other entity of which he served as an
officer, director or employee at the request of the Company (each, an
"Indemnifiable Event").
(b) Notwithstanding anything in the Company's Certificate of
Incorporation, the By-Laws or this Agreement to the contrary, if so requested
by the Executive, the Company shall advance (within two business days of such
request) any and all Expenses, as hereinafter defined, relating to a Claim, as
hereinafter defined, to the Executive (an "Expense Advance"), upon the receipt
of a written undertaking by or on behalf of the Executive to repay such Expense
Advance if a judgment or other final adjudication adverse to the Executive (as
to which all rights of appeal therefrom have been exhausted or lapsed)
establishes that the Executive, with respect to such Claim, is not eligible for
indemnification. A Claim shall include any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative or other, including without limitation, an action by or in the
right of any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
whether predicated on foreign, federal, state or local law and whether formal
or informal. Expenses shall include attorney's fees and all other costs,
charges and expenses paid or incurred in connection with investigating,
defending,
- 16 -
17
being a witness in or participating in (including on appeal), or preparing to
defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event.
(c) The Company agrees to obtain a directors' and officers'
liability insurance policy covering the Executive and to continue and maintain
such policy. The amount of coverage shall be reasonable in relation to the
Executive's position and responsibilities during his employment by the Company.
9. SUCCESSORS.
(a) The Company will require any successor or assign (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, expressly, absolutely and
unconditionally to 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 or assignment had taken place. Any failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession or assignment shall be a material breach of this Agreement and shall
entitle the Executive to terminate the Executive's employment for Good Reason
and receive the compensation provided for in Section 4 hereof. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section 9 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's devisee, legatee or other
designee or, if there be no such designee, to the Executive's estate.
10. NOTICE.
For purposes of this Agreement, notices 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 mailed by United States registered mail,
return receipt requested, postage prepaid, as follows:
If to the Company:
DSC Communications Corporation
0000 Xxxx Xxxx
Xxxxx, XX 00000
Attention: Secretary and General Counsel
- 17 -
18
If to the Executive:
[FirstName] [LastName]
c/o DSC Communications Corporation
0000 Xxxx Xxxx
Xxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. 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 the Company. 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 time 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.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas, without giving effect to any principles of conflicts of
law.
12. CONFLICT IN BENEFITS.
The provisions of this Agreement modify and supersede the provisions
of the Prior Severance Agreement between the Executive and the Company. In
furtherance of the foregoing, the Amended and Restated Severance Compensation
Agreement dated as of [Date2] between the Executive and the Company is hereby
terminated and of no further force or effect. Except as otherwise provided in
the preceding sentences, this Agreement is not intended to and shall not limit
or terminate any other agreement or arrangement between the Executive and the
Company presently in effect or hereafter entered into.
13. VALIDITY.
The invalidity or unenforceability of any 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.
- 18 -
19
14. SURVIVORSHIP.
The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations and to the extent that any
performance is required following termination of this Agreement. Without
limiting the foregoing, Sections 7, 8 and 15 shall expressly survive the
termination of this Agreement.
15. LEGAL FEES AND EXPENSES.
If a claim or dispute arises concerning the rights of the Executive
under this Agreement, regardless of the party by whom such claim or dispute is
initiated, the Company shall, upon presentation of appropriate vouchers, pay
all legal expenses, including reasonable attorneys' fees, court costs, and
ordinary and necessary out-of-pocket costs of attorneys, billed to and payable
by the Executive or by anyone claiming under or through the Executive, in
connection with the bringing, prosecuting, arbitrating, defending, litigating,
negotiating, or settling such claim or dispute. In no event shall the
Executive be required to reimburse the Company for any of the costs or expenses
incurred by the Company relating to arbitration or litigation. Pending the
outcome or resolution of any claim or dispute, the Company shall continue
payment of all amounts due the Executive without regard to any dispute.
16. EFFECTIVE DATE.
This Agreement shall become effective upon execution.
17. 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.
18. NO GUARANTEE OF EMPLOYMENT.
Neither this Agreement nor any action taken hereunder shall be
construed as giving the Executive the right to be retained in employment with
the Company, nor shall it interfere with either the Company's right to
terminate the employment of the Executive at any time or the Executive's right
to terminate his employment at any time.
19. NO ASSIGNMENT BY EXECUTIVE.
Except as otherwise provided in Section 9(b), the Executive's rights
and interest under this Agreement shall not be assignable (in law or in equity)
or subject to any manner of alienation, sale, transfer, claims of creditors,
pledge, attachment, garnishment, levy, execution or encumbrances of any kind.
- 19 -
20
20. WAIVER.
The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement shall not be deemed a waiver of
such provision or any other provision of this Agreement. Any waiver of any
provision of this Agreement shall not be deemed to be a waiver of any other
provision, and any waiver of default in any provision of this Agreement shall
not be deemed to be a waiver of any later default thereof or of any other
provision.
21. WITHHOLDING.
All amounts paid pursuant to this Agreement shall be subject to
withholding for taxes (federal, state, local or otherwise) to the extent
required by applicable law.
22. HEADINGS.
The headings of this Agreement have been inserted for convenience of
reference only and are to be ignored in the construction of the provisions
hereof.
23. NUMBER AND GENDER.
The use of the singular shall be interpreted to include the plural and
the plural the singular, as the context requires. The use of the masculine,
feminine or neuter shall be interpreted to include the masculine, feminine or
neuter as the context shall require.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
DSC COMMUNICATIONS CORPORATION
Date: By:
--------------------------- ---------------------------------
Xxxxx X. Xxxxxx
Chairman of the Board, President
and Chief ExecutiveOfficer
Date: EXECUTIVE:
---------------------------
------------------------------------
[FirstName] [LastName]
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21
APPENDIX A
Example 1 - Executive was employed by the Company for 2 years
and 4 months preceding his taxable year in which a Change in Control
of the Company occurs. The Executive's Compensation from the Company
was $30,000 for the 4-month period, $120,000 for the first full year,
and $150,000 for the second full year. The Executive's Base Amount is
$120,000
[(3 X $30,000) + $120,000 + $150,000].
-------------------------------------
[ 3 ]
Example 2 - Assume the same facts as in Example 1, except that
the Executive also received a $60,000 sign-on bonus when his
employment with the Company commenced at the beginning of the 4-month
period. The Executive's Base Amount is $140,000
[($60,000) + (3 X $30,000)) + $120,000 + $150,000].
---------------------------------------------------
[ 3 ]
Since the sign-on bonus will not be paid more often than once
per year, the amount of the bonus is not increased in annualizing the
Executive's Compensation for the 4-month period.
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22
APPENDIX B
Example - If the Cumulative FIT Gross-Up Rate is 56.52%, the FICA Rate
is 1.45%, and the SIT Rate is 6%, the Executive's SERP Gross-Up
Payment is equal to his deferred vested benefit multiplied by the
following:
1
_____________________________ minus 1
(1 - (.5652 + .0145 + .06))
which equals 1.775464890.
If the Executive's deferred vested benefit payable under Section 4(c)
is $1,500,000, his SERP Gross-Up Payment would be $1,500,000 x
1.775464890, which equals $2,663,197.
- 22 -
23
SCHEDULE TO
SEVERANCE COMPENSATION AGREEMENTS
Xxxxx, Xxxxx
Xxxxxx, Xxxxx X.
Xxxxxxxx, Xxxx X.
Xxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx X.
Xxxxxx, Xxxxxx X.
Xxxxx, Xxxxxxxxx X.
Xxxxxxx, Xxxxxx
Xxxxx, Xxxxxxx X.
