[Exhibit 87]
[FORM OF AGREEMENT FOR NINE EXECUTIVES]
AMENDED AND RESTATED EXECUTIVE AGREEMENT dated as
of February 11, 1997, between ITT Corporation, a Nevada
corporation ("the Company"), and [name of executive]
(the "Executive").
WHEREAS the Company considers it essential to the best
interests of its shareholders to xxxxxx the continuous employment of
key management personnel; and
WHEREAS the Board of Directors of the Company (the "Board")
recognizes that, as is the case with many publicly- held corporations,
the possibility of a Change in Control (as defined in Section 1(d)
hereof) exists and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the
departure or distraction of management personnel to the detriment of
the Company and its shareholders; and
WHEREAS the Board has determined that appropriate steps
should be taken 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 the face of
potential disturbing circumstances arising from the possibility of a
Change in Control;
NOW THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Company and the Executive agree
as follows:
SECTION 1. Definitions. As used in this Agreement:
(a) "Affiliate" has the meaning ascribed thereto in Rule
12b-2 pursuant to the Securities Exchange Act of 1934, as amended (the
"Act").
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" means (i) the willful and continued failure of
the Executive to perform substantially the Executive's duties owed to
the Company or its Affiliates after a written demand for substantial
performance is delivered to the Executive which specifically
identifies the nature of such non-performance, or (ii) conviction of
the Executive for a felony.
No act or omission on the part of the Executive shall be considered
"willful" unless it is done or omitted in bad faith or without
reasonable belief that the action or omis sion was in the best
interests of the Company.
(d) A "Change in Control" shall be deemed to have occurred
if:
(i) a report on Schedule 13D shall be filed with the
Securities and Exchange Commission pursuant to Section 13(d) of
the Securities Exchange Act of 1934 (the "Act") disclosing that
any person (within the meaning of Section 13(d) of the Act),
other than the Company or a subsidiary of the Company or any
employee benefit plan sponsored by the Company or a subsidiary of
the Company, is the beneficial owner directly or indirectly of
twenty percent of more of the outstanding common stock, no par
value ("Stock"), of the Company;
(ii) any person (within the meaning of Section 13(d) of the
Act), other than the Company or a subsidiary of the Company or
any employee benefit plan sponsored by the Company or a
subsidiary of the Company, shall purchase shares pursuant to a
tender offer or exchange offer to acquire any Stock of the
Company (or securities convertible into Stock) for cash,
securities or any other consideration, provided that after
consummation of the offer, the person in question is the
beneficial owner (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, of fifteen percent or more of the
outstanding Stock of the Company (calculated as provided in
paragraph (d) of Rule 13d-3 under the Act in the case of rights
to acquire Stock);
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which
shares of Stock of the Company would be converted into cash,
securities or other property, other than a merger of the Company
in which holders of Stock of the Company immediately prior to the
merger have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger as
immediately before, or (B) any sale, lease, exchange or other
transfer in one transaction or a series of related transactions
of all or substantially all the assets of the Company; or
(iv) there shall have been a change in a majority of the
members of the Board within a 12-month period
unless the election or nomination for election by the
Company stockholders of each new director during such
12-month period was approved by the vote of two-thirds of
the directors then still in office who were directors at the
beginning of such 12-month period.
Notwithstanding the foregoing, any spin-off of all or a portion of the
assets or operations of the Company or any subsidiary which has been
approved by a majority of the directors serving on the Board as of the
date hereof or by directors approved by the vote of two-thirds of the
directors then still in office who were directors as of the date
hereof, shall not be deemed a "Change in Control".
(e) "Good Reason" means:
(i) without the Executive's express written con sent and
excluding for this purpose an isolated, xxxxx xxxxxxxx and
inadvertent action not taken in bad faith and which is remedied
by the Company or its Affiliates promptly after receipt of notice
thereof given by the Executive, (A) a reduction in the
Executive's Annual Base Salary and Annual Bonus (each as defined
herein) or any reduction in any material compensation or benefits
arrangement, (B) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by Section
3(a) hereof, (C) any other action by the Company or any of its
Affiliates which results in a diminution in the Executive's
position, authority, duties or responsibilities, or (D) any
failure by the Company to comply with any of the provisions of
Section 3(b) hereof;
(ii) without the Executive's express written con sent, the
Company's requiring the Executive's work location to be other
than within twenty-five (25) miles of the location set forth in
Section 3(a)(i);
(iii) any failure by the Company to comply with and satisfy
Section 8(a).
For purposes hereof, a determination by the Executive that he has
"Good Reason" hereunder shall be final and binding on the parties
hereto absent a showing of bad faith on the Executive's part.
(f) "Incapacity" means any physical or mental illness or
disability of the Executive which continues for a
period of six consecutive months or more and which at any time after
such six-month period the Board shall reasonably determine renders the
Executive incapable of performing his or her duties during the
remainder of the Term.
(g) "Operative Date" means the date on which a Change in
Control shall have occurred.
SECTION 2. Term of Agreement. This Agreement shall become
operative on the Operative Date and shall remain in effect until the
second anniversary of the Operative Date (the "Term") unless further
extended or sooner terminated as hereinafter provided. Commencing on
the second anniversary of the Operative Date, and each anniversary
date thereafter (each, an "Anniversary Date"), the Term shall
automatically be extended for one additional year, unless, not later
than 30 days prior to such Anniversary Date, the Company shall have
given notice to the Executive that it does not wish to extend this
Agreement.
SECTION 3. Terms of Employment. (a) Position and Duties. (i)
During the Term: (A) the Executive's position (including status,
offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned immediately prior to the Operative Date, and (B) the
Executive's services shall be performed at the location at which the
Executive was based on the Operative Date and the Company shall not
require the Executive to travel on Company business to a substantially
greater extent than required immediately before the Operative Date,
except for travel and temporary assignments which are reasonably
required for the full discharge of the Executive's responsibilities
and which are consistent with the Executive's being so based.
(ii) During the Term, and excluding any periods of vacation
and sick leave to which the Executive is entitled in accordance with
Company policy, the Executive agrees to devote reasonable attention
and time during normal business hours to the business and affairs of
the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the
Executive's reason able best efforts to perform faithfully and
efficiently such responsibilities.
(b) Compensation. (i) Salary and Bonus. During the first
year of the Term, the Executive will receive compensation at an annual
rate equal to the sum of (A) an annual salary not less than the
Executive's annualized salary in effect immediately prior to the
Operative Date
(such annualized salary, as may be increased on or after the Operative
Date, the "Annual Base Salary"), plus (B) a bonus not less than the
aggregate amount of the Executive's highest bonus award under the ITT
Annual Performance-Based Incentive Plan for Executive Officers or any
substitute or successor plan in respect of the last three calendar
years preceding the Operative Date ("Annual Bonus"). During the Term,
on each anniversary of the Operative Date, the Executive's
compensation in effect on such anniversary date shall be increased for
the following twelve-month period by not less than the higher of (A)
5% or (B) 80% of the per centage change in the Consumer Price Index
(All Urban Consumers) for the twelve month period ended immediately
prior to the month in which such anniversary date occurs.
(ii) Employee Benefit Plans. During the Term, the Executive
will be entitled to (A) continue to participate in all 401(k)/savings
and retirement plans, welfare plans, incentive plans, equity-based
plans and all other plans, programs, policies and arrangements
applicable to the Executive prior to the Operative Date (the "Company
Plans"), or (B) participate in employee benefit plans, programs,
policies and arrangements of any successor to the Company which have
benefits that are not less favorable to the Executive.
SECTION 4. Termination of Employment. (a) Death or
Incapacity. This Agreement shall terminate automatically upon the
Executive's death during the Term. This Agreement shall cease and
terminate on the date of determination by the Board that the
Incapacity of the Executive has occurred during the Term ("Incapacity
Effective Date").
(b) Cause. The Company may terminate the Executive's
employment for Cause, as defined herein. Termination of the Executive
for Cause shall not be effective unless the Board has passed a
resolution, duly adopted by the affirmative vote of not less than
three- quarters (3/4) of the entire membership of the Board at a
meeting of the Board which was called and held for the purpose of
considering such termination (after reasonable notice to the Executive
and an opportunity for the Executive, together with the Executive's
counsel, to be heard before the Board, finding that, in the good faith
opinion of the Board, the Executive was guilty of conduct set forth in
clause (i) or (ii) of the definition of Cause herein, and specifying
the particulars thereof in detail.
(c) Good Reason. The Executive may terminate his or her
employment for Good Reason, as defined herein.
(d) Notice of Termination. Any termination by the Company
for Cause or Incapacity, or by the Executive for Good Reason, shall be
communicated by Notice of Termination to the other party hereto given
in accordance with Section 10 of this Agreement. For purposes of this
Agree ment, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated, (iii)
in the case of termination by the Company for Cause or for Incapacity,
confirms that such termination is pursuant to a resolution of the
Board (which, in the case of Cause, is pursuant to Section 4(b)
hereof), and (iv) if the Date of Termination (as defined below) is
other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than 30 days after the
giving of such notice). The failure by the Executive or the Company to
set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason, Incapacity or Cause shall not
serve to waive any right of the Executive or the Company,
respectively, here under or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause or
by the Executive for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be,
(ii) if the Executive's employment is terminated by the Company other
than for Cause or Incapacity, the Date of Termination shall be the
date on which the Company notifies the Executive of such termination,
and (iii) if the Executive's employment is terminated by reason of
death or Incapacity, the Date of Termination shall be the date of
death of the Executive or the Incapacity Effective Date, as the case
may be.
SECTION 5. Obligations of the Company Upon Termination. (a)
Termination for Good Reason or for Reasons Other Than for Cause, Death
or Incapacity. If, during the Term, the Company shall terminate the
Executive's
employment other than for Cause or Incapacity or the Executive shall
terminate his or her employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash, within five business days after the Date of Termination,
the aggregate of the following amounts:
(A) the sum of (1) the Executive's currently effective
Annual Base Salary through the Date of Termination to the
extent not theretofore paid, (2) any compensation previously
deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay,
in each case to the extent not theretofore paid (the sum of
the amounts described in clauses (1) and (2) shall be
hereinafter referred to as the "Accrued Obligations"); and
(B) the amount equal to the product of (1) three1 and
(2) the sum of (x) the Executive's Annual Base Salary and
(y) his or her Annual Bonus;
(ii) for three years2 after the Executive's Date of
Termination, or such longer period as may be provided by the
terms of the appropriate Company Plan, the Company shall continue
health and life insurance benefits, perquisites and fringe
benefits to the Executive and the Executive's eligible family
members at least equal to those which would have been provided to
them in accordance with the Company Plans if the Executive's
employment had not been terminated or, if more favorable to the
Executive, as in effect generally at any time thereafter,
provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive health or life
insurance benefits, perquisites and fringe benefits under another
employer's plans, the Company's obligations under this Section
5(a)(ii) shall cease;
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1 For three of the nine executives covered by individual
agreements, the multiplier will be two, rather than three. The
executives covered, respectively, by the 3x and 2x multipliers are set
forth on Schedule A hereto.
2 Two years for three of the nine executives.
(iii) the Company shall, at its sole expense as incurred,
provide the Executive with reasonable out placement services for
a period of up to one year from the Date of Termination, the
provider of which shall be selected by the Executive in his or
her sole discre tion; and
(iv) to the extent not theretofore paid or pro vided, the
Company shall timely pay or provide to the Executive any other
amounts or benefits required to be paid or provided or which the
Executive is eligible to receive under any Company Plan,
including earned but unpaid stock and similar compensation (such
other amounts and benefits shall be hereinafter referred to as
the "Other Benefits").
(b) Certain Additional Payments by the Company. (i) Anything
in this Agreement to the contrary notwithstanding, if it shall be
determined that any payment or distribution 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
(the "Payment") would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code", and
such excise tax, the "Excise Tax"), then the Executive shall be
entitled to receive from the Company an additional payment (the
"Gross-Up Payment") in an amount such that the net amount of Payment
and Gross-Up Payment retained by the Executive, after the calculation
and deduction of all Excise Taxes (including any interest or penalties
imposed with respect to such taxes) on the Payment and all federal,
state and local income tax, employment tax and Excise Tax (including
any interest or penalties imposed with respect to such taxes) on the
Gross-Up Payment provided for in this Section, shall be equal to the
Payment.
(ii) Subject to the provisions of Section 5(b)(iii), all
determinations required to be made under this Section 5(b), including
whether and when the Gross-Up Payment is required and the amount of
such Gross-Up Payment, and the assumptions to be utilized in arriving
at such determinations shall be made by a nationally recognized
certified public accounting firm as may be jointly designated by the
Executive and the Company (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive
that there
has been a Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment shall be paid by the
Company 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 Company and the Executive. As a result
of 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 the Gross-Up Payment made will have been an amount
less than the Company should have paid pursuant to this Section
5(b)(ii) (the "Underpayment"). In the event that the Company exhausts
its remedies pursuant to Section 5(b)(iii) and the Executive
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment and any
such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(iii) The Executive shall notify the Company in writing of
any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable after the Executive
is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested
to be paid. The Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which he or she
gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes, interest and/or penalties with respect
to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(A) give the Company any information reasonably requested by
the Company relating to such claim,
(B) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(C) cooperate with the Company in good faith in order to
effectively contest such claim, and
(D) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify the
Executive for and hold the Executive harmless from, on an after-tax
basis, any Excise Tax or income tax (including interest and penalties
with respect thereto) imposed as a result of such representation and
payment of all related costs and expenses. Without limiting the
foregoing provisions of this Section 5(b)(iii), the Company shall
control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay such claim and xxx
for a refund, the Company shall advance the amount of such payment to
the Executive, on an interest-free basis, and shall indemnify the
Executive for and hold the Executive harmless from, on an after-tax
basis, 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 (including
as a result of any foregiveness by the Company of such advance); and
further provided that any extension of the statute of limitations
relating to the payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive
shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing
authority.
(iv) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 5(b)(iii), the Executive
becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company's complying with the
requirements of Section 5(b)(iii)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section
5(b)(iii), a determination is made that the Executive shall not be
entitled to any refund
with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment or other indemnity payment required to be
paid.
(c) Death or Incapacity. If the Executive's employment is
terminated by reason of the Executive's death or Incapacity during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this
Agreement, other than for (i) timely payment of Accrued Obligations
and Other Benefits, and (ii) provision by the Company of death
benefits or disability benefits for termination due to death or
Incapacity, respectively, in accordance with the Company Plans as in
effect immediately prior to the Operative Date or, if more favorable
to the Executive, at the Executive's Date of Termination.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Term, this
Agreement shall terminate without further obligations to the Executive
other than timely payment to the Executive of (x) the Executive's
currently effective Annual Base Salary through the Date of
Termination, (y) the amount of any compensation previously deferred by
the Executive, and (z) Other Benefits, in each case to the extent
theretofore unpaid. If the Executive voluntarily terminates employment
during the Term, excluding a termina tion for Good Reason, this
Agreement shall terminate without further obligations to the
Executive, other than for the timely payment of Accrued Obligations
and Other Benefits.
SECTION 6. Non-exclusivity of Rights. Nothing in this
Agreement shall prevent or limit the Executive's con tinuing or future
participation in any Company Plan and for which the Executive may
qualify, nor, subject to Section 14(c), shall anything herein limit or
otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any of its Affiliates.
Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any Company Plan 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.
SECTION 7. Full Settlement. The Company's obligation to make
the payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to
the Executive under any of the provisions of this Agreement and such
amounts shall not be reduced, whether or not the Executive obtains
other employment. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest (regardless
of the outcome thereof) by the Company, the Executive or others of the
validity or enforceability of, or liability under, any provision of
this Agreement or any guarantee of performance thereof.
SECTION 8. Successors; Binding Agreement. (a) The Company
will require any successor (whether direct or indirect, by purchase,
merger, consolidation or other wise) to all or substantially all of
the business or assets of the Company, by agreement, in form and
substance satis factory to the Executive, expressly 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 if no such
succession had taken place. Failure of the Company to obtain such
assumption and agreement prior to the effective ness of any such
succession will be a breach of this Agree ment and entitle the
Executive to compensation from the Company in the same amount and on
the same terms as the Executive would be entitled to hereunder had the
Company terminated the Executive for any reason other than Cause or
Incapacity on the succession date (and assuming a Change in Control of
the company had occurred prior to such succession date). As used in
this Agreement, "the Company" means the Company as defined in the
preamble to this Agreement or any successor to its business or assets
which executes and delivers the agreement provided for in this Section
8 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law or other wise. Notwithstanding the
foregoing, it is expressly acknowledged by the Executive and the
Company that, if the distribution of the stock of ITT Destinations,
Inc., a Nevada corporation, to the Company's stockholders shall occur
prior to the occurrence of a Change in Control of the Company, ITT
Destinations, Inc. shall be required to automatically assume and agree
to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession
had taken
place, 3 and following such distribution, all references herein to
"the Company" shall be deemed to refer to ITT Destinations, Inc.
(b) This Agreement shall be enforceable by the Executive's
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
SECTION 9. Non-assignability. This Agreement is personal in
nature and neither of the parties hereto shall, without the consent of
the other, assign or transfer this Agreement or any rights or
obligations hereunder, except as provided in Section 8 hereof. Without
limiting the fore going, the Executive's right to receive payments
hereunder shall not be assignable or transferable, whether by pledge,
creation of a security interest or otherwise, other than a transfer by
his or her will or by the laws of descent or distribution, and, in the
event of any attempted assignment or transfer by the Executive
contrary to this Section, the Company shall have no liability to pay
any amount so attempted to be assigned or transferred.
SECTION 10. Notices. For the purpose of this Agreement,
notices and all other communications provided for herein shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States regis tered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: [name]
[address]
If to the Company: ITT Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: General Counsel
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.
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3 With respect to Xxxxxx Xxxxxx'x agreement, his agreement
will reflect that ITT World Directories will retain all of the
Company's obligations under such agreement following the
distribution of ITT Destinations stock to ITT's stockholders.
SECTION 11. Operation of Agreement. This Agreement shall be
effective immediately upon its execution and continue to be effective
until the Term expires so long as the Executive is employed by the
Company or any of its Affiliates as of the Operative Date. The
provisions of this Agreement do not take effect until the Operative
Date.
SECTION 12. Governing Law. The validity, inter pretation,
construction and performance of this Agreement shall be governed by
the laws of the State of New York without reference to principles of
conflict of laws.
SECTION 13. Settlement of Disputes; Arbitration. If there
has been a Change in Control and any dispute arises between the
Executive and the Company as to the validity, enforceability and/or
interpretation of any right or benefit afforded by this Agreement, at
the Executive's option, any other agreement or policy notwithstanding,
such dispute shall be resolved by binding arbitration proceedings in
accordance with the rules of the American Arbitration Association. The
arbitrators shall presume that the rights and/or benefits afforded by
this Agreement which are in dispute are valid and enforceable and that
the Executive is entitled to such rights and/or benefits. The Company
shall be precluded from asserting that such rights and/or benefits are
not valid, binding and enforceable and shall stipulate before such
arbitrators that the Company is bound by all the provisions of this
Agreement. The burden of overcoming by clear and convincing evidence
the presumption that the Executive is entitled to such rights and/or
benefits shall be on the Company. The results of any arbitration shall
be conclusive on both parties and shall not be subject to judicial
interference or review on any ground whatsoever, including without
limitation any claim that the Company was wrongfully induced to enter
into this Agreement to arbitrate such a dispute.
The Company shall pay the cost of any arbitration
proceedings under this Agreement. The Executive shall be entitled
(within two business days of requesting such advance) to an advance of
the actual legal fees and expenses incurred by the Executive in
connection with such proceedings and the Executive shall be obligated
to reimburse the Company for such fees and expenses in connection with
such arbitration proceedings only if it is finally and specifically
determined by the arbitrators that the Executive's position in
initiating the arbitration was frivolous and completely without
arguable merit. The arbitrators shall have discretion to award
punitive damages to the Executive if it is found that the Company's
actions or failures to act which led to the Executive submitting a
dispute to arbitration and/or the Company's actions or failures to act
during the pendency of the arbitration proceeding make such an award
appropriate in the circumstances.
In the event the Executive is required to defend in any
legal action or other proceeding the validity or enforceability of any
right or benefit afforded by this Agreement, the Company will pay any
and all actual legal fees and expenses incurred by the Executive
regardless of the outcome of such action and, if requested by the
Executive, shall (within two business days of such request) advance
such fees and expenses to the Executive. The Company shall be
precluded from asserting in any judicial or other proceeding commenced
with respect to any right or benefit afforded by this Agreement that
such rights and benefits are not valid, binding and enforceable and
shall stipulate in any such proceeding that the Company is bound by
all the provisions of this Agreement.
SECTION 14. Miscellaneous. (a) This Agreement contains the
entire understanding with the Executive with respect to the subject
matter hereof and supersedes any and all prior agreements or
understandings, written or oral, relating to such subject matter. No
provisions of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing
signed by the Executive and the Company.
(b) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement.
(c) Except as provided herein, this Agreement shall not be
construed to affect in any way any rights or obligations in relation
to the Executive's employment by the Company or any of its Affiliates
prior to the Operative Date or subsequent to the end of the Term.
(d) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an origi nal but all
of which together will constitute one and the same Agreement.
(e) The Company may withhold from any benefits payable under
this Agreement all Federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
(f) The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered as of the day and year first above set
forth.
ITT CORPORATION
by
----------------------
Name:
Title:
--------------------------
[Name of Executive]
Schedule A
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A. Executives entitled to 3x multiplier under Section 5(a)(i)(B) of
the Agreement--
Xxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx X.
Xxxxxx, Xxxxxx X.
Xxxxx, Xxx X.
Xxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxx P.
B. Executives entitled to 2x multiplier under Section
5(a)(i)(B) of the Agreement--
Xxxxxx, Xxx X.
Xxxxxxx, Xxxx X.
Xxxxxx, Xxxxxxxxx X.
