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EXHIBIT 10.15
Xxxx X. Xxxxxx
CUSTOMERONE HOLDING CORPORATION
PHANTOM STOCK UNIT AGREEMENT
1. Participation. CustomerONE Holding Corporation, a Delaware
corporation (the "Company"), hereby selects Xxxx X. Xxxxxx (the "Participant")
to participate in the Company's Deferred Compensation Plan (the "Plan"), subject
to the terms and conditions of this Phantom Unit Agreement, dated as of October
1, 1998 (the "Agreement"), the "Deferral Election" attached as Exhibit A hereto,
and the Plan. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Plan.
2. Election to Defer Compensation. Upon Participant's execution of this
Agreement and the Deferral Election, and the Committee's approval of the
Deferral Election, the Participant shall commence participation in the Plan.
3. Phantom Stock Units. All compensation deferred pursuant to a
Deferral Election shall be credited to the Participant's Deferral Account and
shall be deemed to be invested in Phantom Stock Units ("Units").
(a) Each Unit credited to Participant's Deferral account in
accordance with the Plan shall be valued at $1.00 per Unit.
4. Vesting of Units. Participant shall be fully vested in all amounts
deferred under the Plan. Participant shall be fully vested in the Spread
credited to Participant's deferral account; provided, however, that if
Participant's employment is terminated for Cause or if Participant voluntarily
terminates employment without Good Reason, as such terms are defined in Section
1 of the Plan, Participant shall forfeit ten percent (10%) of the Spread
credited to Participant's deferral account.
(a) Spread. Spread means, with respect to a Participant as of
any date, the excess, if any (to the extent not yet distributed from such
Account by such date), of: (a) the Fair Market Value of a Unit on the date of
determination over (b) the Fair Market Value of such Unit at the time such Unit
is credited to the Participant's Deferral Account (unless another value is
expressly set forth in Section 3(a) of this Agreement).
5. Deferral Account Distributions. Except as set forth in paragraph (c)
below, the vested portion of a Participant's deferral account shall not be
distributed until a Distribution Event has occurred, as set forth in the Plan.
(a) Acceleration of Distributions. Notwithstanding any
provision contained in the Plan or this Agreement to the contrary, the Committee
may, in its sole discretion, accelerate the distribution in a lump sum of (i)
any or all of the Deferral Accounts to the date of a Change in Control, (ii) any
or all of a Participant's Deferral
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Account following the Participant's resignation without Good Reason or (iii) all
of the Deferral Accounts upon the liquidation or dissolution of the Company.
(b) Form of Payment. In the event of a Distribution Event
described in Section 7.1 of the Plan with respect to a Participant, the amount
credited to a Participant's Deferral Account shall be paid in a lump sum unless
the Participant has elected to receive payment of the Deferral Account in
installments in a manner permitted by and subject to the approval of the
Committee. Such lump sum payment or installment payments shall be made in cash,
shares of common stock of the Company ("Common Stock") or any combination
thereof, as determined in the sole discretion of the Company. For purposes of
satisfying payment of a Participant's Deferral Account with Common Stock, (i)
the Fair Market Value of such Common Stock and the Fair Market Value of the
Units credited to such Deferral Account shall each be determined as of the
payment date and (ii) the Company shall withhold from such distribution and pay
to the appropriate tax authorities the amount of applicable federal and state
income taxes that would be imposed on such distribution, as determined using the
highest marginal rate. Any fractional Units credited to a Participant's Deferral
Account shall be paid in cash.
(c) Hardship Distributions. Upon a written request of a
Participant and the Participant's demonstration to the Committee that a Hardship
(as defined in Section 7.4 of the Plan) exists, the Committee may permit the
distribution of all or any portion of the Participant's Deferral Account prior
to the date such amount otherwise would be distributed. The receipt of a
Hardship distribution by any Participant shall result in the suspension of the
Participant's deferral election under the Plan for a period of one year
following the date of the distribution.
(d) Discharge for Cause; Termination without Good Reason. If
the Participant is discharged by the Company for Cause or if the Participant
terminates employment with the Company without Good Reason (as each such term is
defined in Section 1 of the Plan), the Participant shall forfeit ten percent
(10%) of the Spread credited to Participant's account.
6. Delivery of Common Stock; Compliance With Securities Laws, Etc. In
accordance with the terms of the Plan, pursuant to Participant's written request
for, and the Committee's approval, in its sole discretion, of, distribution of
all or a portion of his or her Deferral Account in the form of Common Stock, the
Company shall make delivery of such Common Stock to the Participant, provided
that if any law or regulation requires the Company to take any action with
respect to such Common Stock before the issuance thereof, then the date of
delivery of such Common Stock shall be extended for the period necessary to
complete such action.
(a) Listing, Qualification, Etc. Requests for distribution of
all or a portion of Participant's Deferral Account in the form of Common Stock
shall be subject to the approval of the Committee and the requirement that if,
at any time, counsel to the Company shall determine that the listing,
registration or qualification of the Common Stock upon any securities exchange
or under any state, federal or foreign law, or the
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consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance of Common
Stock hereunder, such distribution may not be made, in whole or in part, unless
such listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Board of Directors. Nothing herein shall be deemed to
require the Company to apply for, effect or obtain such listing, registration,
qualification, or disclosure, or to satisfy such other condition.
7. Nontransferability of Units. The Units credited to a Participant's
account shall not be transferable otherwise than by will or the laws of descent
and distribution.
8. No Special Employment Rights. Nothing contained in the Plan or this
Agreement shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment of the Participant.
9. Rights as a Stockholder. Unless and until stock certificates
evidencing the Common Stock which may be received pursuant to the Units have
been issued (as evidenced by the appropriate entry on the books of the Company
or a duly authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect to such
Common Stock. The Company shall issue (or cause to be issued) such stock
certificates in accordance with the terms of the Plan. No adjustment will be
made for a dividend or other right for which the record date is prior to the
date of the stock certificate is issued, except as provided in the Plan.
10. Adjustment Event. In the event there is any change in the Common
Stock, through merger, consolidation, reorganization, recapitalization (other
than pursuant to bankruptcy proceedings), stock dividend, stock split, reverse
stock split, split-up, split-off, spin-off, combination of shares, exchange of
shares, dividend in kind or other like change in capital structure (each an
"Adjustment Event"), the number of Units subject to the Plan shall be adjusted
by the Committee in its sole judgment so as to give appropriate effect to such
Adjustment Event. Any fractional units resulting from such adjustment may be
eliminated. Each successive Adjustment Event shall result in the consideration
by the Committee of whether any adjustment to the number of Units subject to the
Plan is necessary in the Committee's judgment. Issuance of Common Stock or
securities convertible into Common Stock for value will not be deemed to be an
Adjustment Event unless otherwise expressly determined by the Committee.
11. Withholding Taxes. By participation in the Plan, any individual who
is an employee of the Company or any Related Entity shall be deemed to (a) agree
to reimburse the Company or any Related Entity by which the Participant is
employed for any taxes required by any governmental regulatory authority to be
withheld or otherwise deducted by such entity in respect of the payment of any
amounts under the Plan, (b) authorize the Company or any Related Entity by which
the Participant is employed to withhold from any cash compensation paid to the
Participant or on the Participant's behalf, an amount sufficient to discharge
such taxes and which otherwise has not been
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reimbursed by the Participant in respect of the payment of any amounts
hereunder, or (c) authorize the Company or any Related Entity to, in its
discretion, effect any required withholding by retaining Common Stock issuable
to the Participant, having a Fair Market Value on the date of issuance which is
equal to the amount to be withheld.
12. Investment Representations. The Participant represents, warrants
and covenants that:
(i) Any Common Stock received upon distribution of
Participant's Deferral Account shall be acquired for the Participant's
account for investment only and not with a view to, or for sale in
connection with, any distribution of the shares in violation of the
Securities Act of 1933 (the "Securities Act") or any rule or regulation
under the Securities Act; and
(ii) If any Common Stock shall be registered under
the Securities Act, no public offering (otherwise than on a national
securities exchange, as defined in the Exchange Act) of any Common
Stock acquired hereunder shall be made by the Participant (or any other
person) under such circumstances that Participant (or such person) may
be deemed an underwriter, as defined in the Securities Act; and
(iii) The Participant agrees that the Company shall
have the authority to endorse upon the certificate or certificates
representing the Common Stock acquired hereunder such legends referring
to the foregoing restrictions, and any other applicable restrictions,
as it may deem appropriate.
13. Miscellaneous.
(a) Amendment or Termination of Plan. The Committee may amend,
suspend or terminate the Plan at any time with or without prior notice;
provided, however, that no such action shall materially impair any rights or
benefits (other than the right to effect Compensation deferrals under a previous
election) which theretofore accrued under the Plan without the consent of
affected Participants. If the Committee determines to accelerate distribution in
a lump sum pursuant to Section 7.2(i) of the Plan, each deferral election of a
Participant receiving payment as a result thereof shall be deemed to be
terminated on the date of the Change in Control.
(b) Amendment or Termination of Agreements. The Committee may
amend or modify any Agreement at any time, provided, however, that no such
action shall materially impair any rights or benefits (other than the right to
effect Compensation deferrals under a previous election) which theretofore
accrued under the Plan without the consent of affected Participants, and may
amend or modify any Agreement at any time by mutual agreement between the
Committee and the Participant or such other persons as may then have an interest
therein.
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(c) All notices under this Agreement shall be mailed or
delivered by hand to the parties at their respective addresses set forth beneath
their names below or at such other address as may be designated in writing by
either of the parties to one another.
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(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principals.
Submitted by:
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Address:
Accepted by:
CUSTOMERONE HOLDING CORPORATION
By: /s/ XXXX XXXXXX
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Title:
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Xxxx X. Xxxxxx
EXHIBIT A
CUSTOMERONE HOLDING CORPORATION
DEFERRED COMPENSATION PLAN
DEFERRAL ELECTION
CustomerONE Holding Corporation (the "Company")
Attention: Treasurer
Deferral Election. Effective as of the date of this election the
undersigned ("Participant") hereby elects to defer $16,666.66 of Participant's
November 1998 salary compensation and $8,333.33 of Participant's salary
compensation for each of the following twenty-two (22) months, beginning with
December 1998 and ending with September 2000, pursuant to the Company's Deferred
Compensation Plan (the "Plan") and the Phantom Stock Unit Agreement dated as of
October 1, 1998, (the "Phantom Unit Agreement").
1. Timing of Deferral. The deferral of compensation hereunder shall be
made effective as of October 1, 1998.
2. Representations of Participant. Participant acknowledges that
Participant has received, read and understood the Plan, the Phantom Unit
Agreement, and this Deferral Agreement and agrees to abide by and be bound by
the terms and conditions of such documents.
3. Compliance with Securities Laws. Notwithstanding any other provision
of the Phantom Unit Agreement or the Plan to the contrary, the exercise of any
rights under the Plan is expressly conditioned upon compliance with the
Securities Act of 1933, as amended, all applicable state securities laws and all
applicable requirements of any stock exchange or over-the-counter market on
which the Company's Common Stock may be listed or traded. Participant agrees to
cooperate with the Company to ensure compliance with such laws.
4. Tax Consultation. Participant understands that Participant may
suffer adverse tax consequences as a result of Participant's participation in
the Plan. Participant represents that Participant has consulted with any tax
consultants Participant deems advisable in connection with participating in and
receiving benefits under the Plan and that Participant is not relying on the
Company for any tax advice.
5. Definitions; Interpretation. Capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned thereto in
the Plan and the Phantom Unit Agreement. Any dispute regarding the
interpretation of this Deferral Election shall be submitted by Participant or by
the Company forthwith to the Company's Board of Directors or the Committee
thereof that administers the Plan, which shall review
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such dispute at its next regular meeting. The resolution of such a dispute by
the Board or Committee shall be final and binding on the Company and on
Purchaser.
6. No Employment or Service Contract. Nothing in this Deferral
Election, the Plan or in the Phantom Unit Agreement shall confer upon
Participant any right to continue in service of the Company for any period of
specific duration or interfere with or otherwise restrict in any way the rights
of the Company (or any Related Entity employing or retaining Participant) or of
Participant, which rights are hereby expressly reserved by each, to terminate
Participant's service at any time for any reason, with or without cause.
7. Governing Law; Severability. This Deferral Election shall be
governed by an construed in accordance with the laws of the State of New York,
without regard to conflicts of law principles. Should any provision of this
Deferral Election be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
8. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Deferral Election.
9. Entire Agreement. The Plan and Phantom Unit Agreement are
incorporated herein by reference. This Deferral Election, the Plan and the
Phantom Unit Agreement constitute the entire agreement of the parties and
supersede in their entirety all prior undertakings and agreements of the Company
and Participant with respect to the subject matter hereof.
10. Participant Undertaking. Participant hereby agrees to take whatever
additional action and execute whatever additional documents the Company may deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on either Participant or the Common Stock
pursuant to the provisions of the Plan, the Phantom Unit Agreement or applicable
law.
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Xxxx X. Xxxxxx
11. Counterparts. This Deferral Election may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
Submitted by:
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Address:
Accepted by:
CUSTOMERONE HOLDING CORPORATION
By: /s/ XXXX XXXXXX
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Title:
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