AGREEMENT
---------
THIS AGREEMENT dated as of January 30, 1997, is made by and between
Metromail Corporation, a Delaware corporation ("Metromail"; Metromail and its
Subsidiaries being hereafter referred to as the "Company"), and Xxxxxxxxxx Xxxxx
(the "Executive").
WHEREAS the Company considers it essential to the best interests of
its stockholders to xxxxxx the continuous employment of key management
personnel; and
WHEREAS the Board of Directors of Metromail (the "Board") recognizes
that, as is the case with many publicly held corporations, the possibility of a
Change in Control (as defined in the last Section 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 stockholders; 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 potentially disturbing circumstances arising from the
possibility of a Change in Control;
NOW THEREFORE, in consideration of the promises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. The definition of capitalized terms used in this
Agreement is provided in the last Section hereof.
2. Term of Agreement. (a) This Agreement shall commence on the date
hereof and shall continue until terminated by the Company as provided in
paragraph (b) of this Section 2; provided, however, that this Agreement shall
terminate in any event upon the first to occur of (i) the Executive's death and
(ii) termination of the Executive's employment with the Company prior to a
Change in Control.
(b) The Company shall have the right prior to a Change in Control, in
its sole discretion, pursuant to action by the Board, to approve the termination
of this Agreement, which termination shall not become effective until the date
fixed by the Board for such termination, which date shall be at least 120 days
after notice thereof is given by the Company to the Executive in accordance with
Section 10 hereof; provided, however, that no such action shall be taken by the
Board during any period of time when the Board has knowledge that any Person
-2-
has taken steps reasonably calculated to effect a Change in Control until, in
the opinion of the Board, such Person has abandoned or terminated its efforts to
effect a Change in Control; and provided further, that in no event shall this
Agreement be terminated in the event of a Change in Control.
3. Company's Covenants Summarized. In order to induce the Executive
to remain in the employ of the Company and in consideration of the Executive's
covenants set forth in Section 4 hereof, the Company agrees, under the
conditions described herein, to pay the Executive the Severance Payments and the
other payments and benefits described herein in the event the Executive's
employment with the Company is terminated following a Change in Control and
during the term of this Agreement. No amount or benefit shall be payable under
this Agreement unless there shall have been (or, under the terms hereof, there
shall be deemed to have been) a termination of the Executive's employment with
the Company following a Change in Control. This Agreement shall not be
construed as creating an express or implied contract of employment and, except
as otherwise agreed in writing between the Executive and the Company, the
Executive shall not have any right to be retained in the employ of the Company.
-3-
4. The Executive's Covenants. The Executive agrees that, subject to
the terms and conditions of this Agreement, in the event of a Potential Change
in Control during the term of this Agreement, the Executive will remain in the
employ of the Company until the earliest of (i) a date which is six (6) months
from the date of such Potential Change of Control, (ii) the date of a Change in
Control, (iii) the date of termination by the Executive of the Executive's
employment for Good Reason (determined by treating the Potential Change in
Control as a Change in Control in applying the definition of Good Reason), by
reason of death, Disability or Retirement, or (iv) the termination by the
Company of the Executive's employment for any reason.
5. Compensation Other Than Severance Payments.
5.01 Following a Change in Control and during the term of this
Agreement, during any period that the Executive fails to perform the Executive's
full-time duties with the Company as a result of incapacity due to physical or
mental illness, the Company shall pay the Executive's full salary to the
Executive at the rate in effect at the commencement of any such period, together
with all compensation and benefits payable to the Executive under the terms of
any compensation or benefit plan,
-4-
program or arrangement maintained by the Company during such period, until the
Executive's employment is terminated by the Company for Disability.
5.02 If the Executive's employment shall be terminated for any reason
following a Change in Control and during the term of this Agreement, the Company
shall pay the Executive's full salary to the Executive through the Date of
Termination at the rate in effect at the time the Notice of Termination is
given, together with all compensation and benefits payable to the Executive
through the Date of Termination under the terms of any compensation or benefit
plan, program or arrangement maintained by the Company during such period.
5.03 If the Executive's employment shall be terminated for any reason
following a Change in Control and during the term of this Agreement, the Company
shall pay the Executive's normal post-termination compensation and benefits to
the Executive as such payments become due; provided that, in no event shall any
severance pay which might be payable to the Executive pursuant to the Company's
Separation Pay Plan be paid if the Executive is entitled to the Severance
Payments as a result of such termination. Such post-termination compensation
and benefits shall be determined under, and paid in accordance with, the
-5-
Company's retirement, insurance and other compensation or benefit plans,
programs and arrangements.
6. Severance Payments.
6.01 The Company shall pay the Executive the payments described in
this Section 6.01 (the "Severance Payments") upon the termination of the
Executive's employment following a Change in Control and during the term of this
Agreement, in addition to the payments and benefits described in Section 5
hereof, unless such termination is (i) by the Company for Cause, (ii) by reason
of death or Disability or (iii) by the Executive without Good Reason. The
Executive's employment shall be deemed to have been terminated following a
Change in Control by the Company without Cause or by the Executive with Good
Reason if the Executive's employment is terminated prior to a Change in Control
without Cause at the direction of a Person who has entered into an agreement
with the Company the consummation of which will constitute a Change in Control
or if the Executive terminates his employment with Good Reason prior to a Change
in Control (determined by treating a Potential Change in Control as a Change in
Control in applying the definition of Good Reason) if the circumstance or event
which constitutes Good Reason occurs at the direction of such Person.
-6-
(A) In lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination and in lieu of any severance
benefit otherwise payable to the Executive, the Company shall pay to the
Executive a lump sum severance payment, in cash, equal to the amount of two (2)
times the Executive's Planned Compensation.
(B) In addition to the retirement benefits to which the Executive is
entitled under the Pension Plan or any successor plans thereto, the Company
shall pay the Executive a lump sum amount, in cash, equal to the actuarial
equivalent of the excess of (i) the retirement pension (determined as a straight
life annuity commencing at Normal Retirement Age) which the Executive would have
accrued under the terms of the Pension Plan (without regard to any amendment to
the Pension Plan made subsequent to a Change in Control and on or prior to the
Date of Termination, which amendment adversely affects in any manner the
computation of retirement benefits thereunder), determined as if the Executive
were fully vested thereunder and had accumulated (after the Date of Termination)
twenty-four (24) (or, if less, a number equal to the number of months, including
fractional parts thereof, from the Date of Termination until the Executive
reaches Normal Retirement Age) additional months of service credit
-7-
thereunder at the Executive's highest annual rate of compensation during the
twelve (12) months immediately preceding the Date of Termination, and (ii) the
retirement pension (determined as a straight life annuity commencing at Normal
Retirement Age) which the Executive had then accrued pursuant to the provisions
of the Pension Plan. For purposes of this Section 6.01(B), "actuarial
equivalent" shall be determined using the same assumptions utilized under the
Pension Plan immediately prior to the Date of Termination.
(C) For a twenty-four (24) month period after the Date of Termination,
the Company shall arrange to provide the Executive with life, disability,
accident and health insurance benefits substantially similar to those which the
Executive is receiving immediately prior to the Notice of Termination (without
giving effect to any reduction in such benefits subsequent to a Change in
Control which reduction constitutes Good Reason); provided, however, that, in
the event the date upon which the Executive attains Normal Retirement Age occurs
during such twenty-four (24) month period, the Executive shall thereafter
receive such life, disability, accident and health insurance benefits as would
be provided to him as a retiree. Benefits otherwise receivable by the Executive
pursuant to this Section
-8-
6.01(C) shall be reduced to the extent comparable benefits are actually received
by or made available to the Executive without cost during the twenty-four (24)
month period following the Executive's termination of employment (and any such
benefits actually received by the Executive shall be reported to the Company by
the Executive).
6.02 (A) Whether or not the Executive becomes entitled to the
Severance Payments, if any of the Total Payments will be subject to the Excise
Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up
Payment") such that the net amount retained by the Executive, after deduction of
any Excise Tax on the Total Payments and any federal, state and local income tax
and Excise Tax upon the payment provided for by this Section 6.02, shall be
equal to the excess of the Total Payments over the payment provided for by this
Section 6.02.
(B) For purposes of determining whether any of the Total Payments will
be subject to the Excise Tax and the amount of such Excise Tax, (i) any payments
or benefits received or to be received by the Executive in connection with a
Change in Control or the Executive's termination of employment (whether pursuant
to the terms of this Agreement or any other plan, arrangement or agreement with
the Company, any Person whose
-9-
actions result in a Change in Control or any Person affiliated with the Company
or such Person) (the "Total Payments") shall be treated as "parachute payments"
(within the meaning of section 28OG(b) (2) of the Code) unless, in the opinion
of tax counsel selected by the Company's independent auditors and reasonably
acceptable to the Executive, such payments or benefits (in whole or in part) do
not constitute parachute payments, including by reason of section 280G(b) (4)
(A) of the Code, and all "excess parachute payments" (within the meaning of
section 280G(b) (1) of the Code) shall be treated as subject to the Excise Tax
unless, in the opinion of such tax counsel, such excess parachute payments (in
whole or in part) represent reasonable compensation for services actually
rendered (within the meaning of section 280G(b) (4) (B) of the Code), or are
otherwise not subject to the Excise Tax, and (ii) the value of any noncash
benefits or any deferred payment or benefit shall be determined by the Company's
independent auditors in accordance with the principles of sections 280G(d)(3)
and (4) of the Code. For purposes of determining the amount of the Gross-Up
Payment, the Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross-Up Payment is to be made and state and local
-10-
income taxes at the highest marginal rate of taxation in the state and locality
of the Executive's residence on the Date of Termination, net of the maximum
reduction in federal income taxes which could be obtained from deduction of such
state and local taxes.
(C) In the event that the Excise Tax is subsequently determined to be
less than the amount taken into account hereunder at the time of termination of
the Executive's employment, the Executive shall repay to the Company, at the
time that the amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction (plus that
portion of the Gross-Up Payment attributable to the Excise Tax and federal,
state and local income tax imposed on the Gross-Up Payment being repaid by the
Executive to the extent that such repayment results in a reduction in Excise Tax
and/or a federal, state or local income tax deduction) plus interest on the
amount of such repayment at the rate provided in section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the amount taken
into account hereunder at the time of the termination of the Executive's
employment (including increases in the Excise Tax resulting from any payment the
existence or amount of which could
-11-
not be determined at the time of the Gross-Up Payment), the Company shall make
an additional Gross-Up Payment in respect of such excess (plus any interest,
penalties or additions payable by the Executive with respect to such excess) at
the time that the amount of such excess is finally determined. The Executive and
the Company shall each reasonably cooperate with the other in connection with
any administrative or judicial proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Total Payments.
6.03 The payments provided for in Section 6.01 (other than Section
6.01(C)) and 6.02 hereof shall be made not later than the fifth (5th) day
following the Date of Termination; provided, however, that, if the amounts of
such payments cannot be finally determined on or before such day, the Company
shall pay to the Executive on such day an estimate, as determined in good faith
by the Company, of the minimum amount of such payments to which the Executive is
clearly entitled and shall pay the remainder of such payments (together with
interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as
the amount thereof can be determined but in no event later than the thirtieth
(30th) day after the Date of Termination. In the event that the amount of the
estimated payments exceeds the amount
-12-
subsequently determined to have been due, such excess shall constitute a loan by
the Company to the Executive, payable on the fifth (5th) business day after
demand by the Company (together with interest at the rate provided in section
1274(b)(2)(B) of the Code). At the time that payments are made under this
Section, the Company shall provide the Executive with a written statement
setting forth the manner in which such payments were calculated and the basis
for such calculations including, without limitation, any opinions or other
advice the Company has received from outside counsel, auditors or consultants
(and any such opinions or advice which are in writing shall be attached to the
statement).
6.04 The Company also shall pay to the Executive all legal fees and
expenses incurred by the Executive as a result of a termination which entitles
the Executive to the Severance Payments (including all such fees and expenses,
if any, incurred in disputing any such termination or in seeking in good faith
to obtain or enforce any benefit or right provided by this Agreement or in
connection with any tax audit or proceeding to the extent attributable to the
application of section 4999 of the Code to any payment or benefit provided
hereunder). Such payments shall be made within five (5) business days after
delivery of the
-13-
Executive's written requests for payment accompanied with such evidence of fees
and expenses incurred as the Company reasonably may require.
7. Termination Procedures and Compensation During Dispute.
7.01 Notice of Termination. After a Change in Control and during the
term of this Agreement, any purported termination of the Executive's employment
(other than by reason of death) shall be communicated by written Notice of
Termination from one party hereto to the other party hereto in accordance with
Section 10 hereof. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set 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. Further, a Notice of Termination
for Cause is required to include a copy of 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
-14-
of conduct set forth in clause (i) or (ii) of the definition of Cause herein,
and specifying the particulars thereof in detail.
7.02 Date of Termination. "Date of Termination," with respect to any
purported termination of the Executive's employment after a Change in Control
and during the term of this Agreement, shall mean (i) if the Executive's
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to the
full-time performance of the Executive's duties during such thirty (30) day
period), and (ii) if the Executive's employment is terminated for any other
reason, the date specified in the Notice of Termination (which, in the case of a
termination by the Company, shall not be less than thirty (30) days (except in
the case of a termination for Cause) and, in the case of a termination by the
Executive, shall not be less than fifteen (15) days nor more than sixty (60)
days, respectively, from the date such Notice of Termination is given).
7.03 Dispute Concerning Termination. If within fifteen (15) days
after any Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without regard to this Section 7.03), the party
receiving such Notice of Termination notifies the other party that a dispute
exists
-15-
concerning the termination, the Date of Termination shall be the date on which
the dispute is finally resolved, either by mutual written agreement of the
parties or by a final judgment, order or decree (which is not appealable or with
respect to which the time for appeal therefrom has expired and no appeal has
been perfected) of a court of competent jurisdiction; provided, however, that
the Date of Termination shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence.
7.04 Compensation During Dispute. If a purported termination occurs
following a Change in Control and during the term of this Agreement, and such
termination is disputed in accordance with Section 7.03 hereof, the Company
shall continue to pay the Executive the full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
salary) and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the notice
giving rise to the dispute was given, until the dispute is finally resolved in
accordance with Section 7.03 hereof. Amounts paid under this Section 7.04 are
in addition to all other amounts due under this Agreement (other than those due
under Section 5.02 hereof) and shall not be offset against or reduce any other
amounts due under this Agreement.
-16-
8. No Mitigation. The Company agrees that, if the Executive's
employment by the Company is terminated during the term of this Agreement, the
Executive is not required to seek other employment or to attempt in any way to
reduce any amounts payable to the Executive by the Company pursuant to Section 6
or Section 7.04 hereof. Further, the amount of any payment or benefit provided
for in Section 6 (other than Section 6.01(C)) or Section 7.04 hereof shall not
be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.
9. Successors; Binding Agreement.
9.01 In addition to any obligations imposed by law upon any successor
to Metromail, Metromail will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of Metromail to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that Metromail would be
required to perform it if no such succession had taken place. Failure of
Metromail to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
-17-
Executive to compensation in the same amount and on the same terms as the
Executive would be entitled to hereunder if the Executive were to terminate the
Executive's employment for Good Reason after a Change in Control, except that,
for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination.
9.02 This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amount would still be payable to the Executive hereunder (other
than amounts which, by their terms, terminate upon the death of the Executive)
if the Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the executors, personal representatives or administrators of the Executive's
estate.
10. Notices. For the purpose 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, addressed to
the
-18-
respective addresses set forth below, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon actual receipt:
To the Company:
Metromail Corporation
000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
To the Executive:
Xxxxxxxxxx Xxxxx
_________________________
_________________________
11. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter
-19-
hereof have been made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Illinois. All references
to sections of the Exchange Act or the Code shall be deemed also to refer to any
successor provisions to such sections. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state or local
law and any additional withholding to which the Executive has agreed. The
obligations of the Company and the Executive under Sections 6 and 7 hereof shall
survive the expiration of the term of this Agreement.
12. Validity. The invalidity or unenforceability or any provision 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.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Settlement of Disputes; Arbitration. All claims by the Executive
for benefits under this Agreement shall be directed to and determined by the
Board and shall be in writing.
-20-
Any denial by the Board of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The
Board shall afford a reasonable opportunity to the Executive for a review of the
decision denying a claim and shall further allow the Executive to appeal to the
Board a decision of the Board within sixty (60) days after notification by the
Board that the Executive's claim has been denied. Any further dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration in Chicago, Illinois, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided, however, that
the Executive shall be entitled to seek specific performance of the Executive's
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
15. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(A) "Beneficial Owner" shall have the meaning defined in Rule 13d-3
under the Exchange Act.
-21-
(B) "Board" shall mean the Board of Directors of Metromail.
(C) "Bonus Plan" shall mean any supplementary compensation plan or
bonus plan or arrangement, or any similar successor plan or arrangement,
applicable to the Executive, other than the 1996 Stock Incentive Plan and the
1996 Broad-Based Employee Stock Plan.
(D) "Cause" for termination by the Company of the Executive's
employment, after any Change in Control, shall mean (i) the willful and
continued failure by the Executive to substantially perform the Executive's
duties with the Company (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of Termination for Good
Reason by the Executive pursuant to Section 7.01 hereof) after a written demand
for substantial performance is delivered to the Executive by the Board, which
demand specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties, or (ii) the
willful engaging by the Executive in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise. For purposes of
clauses (i)
-22-
and (ii) of this definition, no act, or failure to act, on the Executive's part
shall be deemed "willful" unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that the Executive's act, or
failure to act, was in the best interest of the Company.
(E) A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of Metromail (not including in the securities
beneficially owned by such Person any securities acquired directly from
Metromail or
-23-
its affiliates) representing 50% or more of the combined voting power of
Metromail's then outstanding securities; or
(II) during any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals
who at the beginning of such period constitute the Board and any new
director (other than a director designated by a Person who has entered into
an agreement with Metromail to effect a transaction described in clause
(I), (III) or (IV) of this paragraph) whose election by the Board or
nomination for election by Metromail's stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved (a "Continuing
Director"), cease for any reason to constitute a majority thereof; or
(III) the stockholders of Metromail approve a merger or
consolidation of Metromail with any other corporation, other than (i) a
merger or consolidation which would result in the voting securities of
Metromail outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being
-24-
converted into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, at least 50% of the combined
voting power of the voting securities of Metromail or such surviving entity
outstanding immediately after such merger or consolidation, or (ii) a
merger or consolidation effected to implement a recapitalization of
Metromail (or similar transaction) in which no Person acquires more than
50% of the combined voting power of the Company's then outstanding
securities; or
(IV) the stockholders of Metromail approve a plan of complete
liquidation of Metromail or an agreement for the sale or disposition by
Metromail of all or substantially all Metromail's assets.
The foregoing to the contrary notwithstanding, a Change in Control
shall not be deemed to have occurred with respect to the Executive if (i) the
event first giving rise to the Potential Change in Control involves a publicly
announced transaction or publicly announced proposed transaction which at the
time of the announcement has not been previously approved by the Board and (ii)
the Executive is "part of a purchasing group" proposing the
-25-
transaction. A Change in Control shall also not be deemed to have occurred with
respect to the Executive if the Executive is part of a purchasing group which
consummates the Change in Control transaction. The Executive shall be deemed
"part of a purchasing group" for purposes of the two preceding sentences if the
Executive is an equity participant or has agreed to become an equity participant
in the purchasing company or group (except for (i) passive ownership of less
than 5% of the stock of the purchasing company or (ii) ownership of equity
participation in the purchasing company or group which is otherwise not deemed
to be significant, as determined prior to the Change in Control by a majority of
the nonemployee Continuing Directors).
(F) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(G) "Company" shall mean Metromail and its Subsidiaries.
(H) "Date of Termination" shall have the meaning stated in Section
7.02 hereof.
(I) "Disability" shall be deemed the reason for the termination by the
Company of the Executive's employment, if, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from the full-time
-26-
performance of the Executive's duties with the Company for a period of six (6)
consecutive months, the Company shall have given the Executive a Notice of
Termination for Disability, and, within thirty (30) days after such Notice of
Termination is given, the Executive shall not have returned to the full-time
performance of the Executive's duties.
(J) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(K) "Excise Tax" shall mean any excise tax imposed under section 4999
of the Code.
(L) "Executive" shall mean the individual named in the first paragraph
of this Agreement.
(M) "Good Reason" for termination by the Executive of the Executive's
employment shall mean the occurrence (without the Executive's express written
consent) of any one of the following acts by the Company, or failures by the
Company to act, unless, in the case of any act or failure to act described in
paragraph (I), (V), (VI), (VII), or (VIII) below, such act or failure to act is
corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(I) the assignment to the Executive of any duties inconsistent
with the Executive's status as a senior officer
-27-
of the Company or a substantial adverse alteration in the nature or status
of the Executive's responsibilities from those in effect immediately prior
to the Change in Control;
(II) a reduction by the Company in the Executive's annual base
salary as in effect on the date hereof or as the same may be increased from
time to time;
(III) the Company's requiring that the Executive's principal
place of business be at an office located more than 25 miles from the site
of the Executive's principal place of business immediately prior to the
Change in Control except for required travel on the Company's business to
an extent substantially consistent with the Executive's present business
travel obligations;
(IV) the failure by the Company, without the Executive's consent,
to pay to the Executive any portion of the Executive's current
compensation, or to pay to the Executive any portion of an installment of
deferred compensation under any deferred compensation program of the
Company, within seven (7) days of the date such compensation is due;
(V) the failure by the Company to continue in effect any
compensation plan in which the Executive
-28-
participates immediately prior to the Change in Control which is material
to the Executive's total compensation, including but not limited to the
Stock Plans, or any substitute plans adopted prior to the Change in
Control, unless an equitable arrangement (embodied in an ongoing substitute
or alternative plan) has been made with respect to such plan, or the
failure by the Company to continue the Executive's participation therein
(or in such substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the level
of the Executive's participation relative to other participants, as existed
at the time of the Change in Control;
(VI) the failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by the
Executive under any of the Company's pension, life insurance, medical,
health and accident, or disability plans in which the Executive was
participating at the time of the Change in Control, the taking of any
action by the Company which would directly or indirectly materially reduce
any of such benefits or deprive the Executive of any material fringe
benefit enjoyed by the Executive at the time
-29-
of the Change in Control, or the failure by the Company to provide the
Executive with the number of paid vacation days to which the Executive is
entitled on the basis of years of service with the Company in accordance
with the Company's normal vacation policy in effect at the time of the
Change in Control; or
(VII) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination satisfying the
requirements of Section 9.01 hereof; for purposes of this Agreement, no
such purported termination shall be effective.
-30-
The Executive's right to terminate the Executive's employment for Good
Reason shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
(N) "Gross-Up Payment" shall have the meaning given in Section 6.02
hereof.
(O) "Metromail" shall mean Metromail Corporation and any successor to
its business or assets which assumes and agrees to perform this Agreement by
operation of law, or otherwise (except in determining, under Section 15(F)
hereof, whether or not any Change in Control of Metromail has occurred in
connection with such succession).
(P) "Normal Retirement Age" shall mean the earliest age at which the
Executive may commence Retirement and become entitled to an unreduced pension
under the Pension Plan.
(Q) "Notice of Termination" shall have the meaning stated in Section
7.01 hereof.
(R) "Pension Plan" shall mean the Metromail Corporation Pension Plan.
-31-
(S) "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof;
provided, however, that a Person shall not include (i) Metromail or any of its
Subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (iv) a corporation
owned, directly or indirectly, by the stockholders of Metromail in substantially
the same proportions as their ownership of stock of Metromail.
(T) "Planned Compensation" shall mean the annual "planned
compensation" approved by the Board or an authorized committee thereof to be
paid to the Executive (or, if the Executive's "planned compensation" is not
presented for approval by the Board or an authorized committee thereof, then as
otherwise established by Metromail or one of its Subsidiaries) with respect to
the year in which the Date of Termination occurs, or with respect to either of
the previous two (2) calendar years, whichever is highest, such "planned
compensation" being a gross amount comprised of base salary plus any bonus
payable to the Executive under any Bonus Plan for the calendar year in question,
assuming achievement of the maximum target level for the period
-32-
with respect to which such bonus was paid.
(U) a "Potential Change in Control" shall be deemed to have occurred
if the conditions set forth in any one of the following paragraphs shall have
been satisfied:
-33-
(I) Metromail enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
(II) Metromail or any Person publicly announces an intention to
take or to consider taking actions which, if consummated, would constitute
a Change in Control;
(III) any Person who is or becomes the Beneficial Owner, directly
or indirectly, of securities of Metromail representing at least 9-1/2% or
more of the combined voting power of Metromail's then outstanding
securities increases such Person's beneficial ownership of such securities
by 5% or more over the percentage so owned by such Person on the date
hereof; or
(IV) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(V) "Retirement" shall be deemed the reason for the termination by the
Company or the Executive of the Executive's employment if such employment is
terminated in accordance with the Company's retirement policy, not including
early retirement, generally applicable to its salaried employees, as in effect
immediately prior to the Change in Control, or in accordance with
-34-
any retirement arrangement established with the Executive's consent with respect
to the Executive.
(W) "Severance Payments" shall mean those payments described in
Section 6.01 hereof.
(X) "Stock Plans" shall mean the Company's 1996 Stock Incentive Plan,
1996 Broad-Based Employee Stock Plan and any other stock compensation plan
applicable to the Executive, or any similar successor plan or arrangement.
(Y) "Subsidiary" shall mean any corporation, partnership or other
entity, at least a majority of the outstanding voting shares or controlling
interest of which is at the time directly or indirectly owned or controlled
(either alone or through Subsidiaries or together with Subsidiaries) by
Metromail or another Subsidiary.
(Z) "Total Payments" shall mean those payments described in Section
6.02 hereof.
METROMAIL CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
______________________________________
Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
/s/ Xxxxxxxxxx Xxxxx
________________________________________
Xxxxxxxxxx Xxxxx
Executive
-35-
