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EXHIBIT 10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
effective as of the 1st day of January, 1999, and amended and restated as of the
30th day of June, 2000, is made by and between Xxxx Atlantic Corporation, its
successors and assigns ("Xxxx Atlantic"), and Xxxx X. Xxxxxxxxxx, Chief
Executive Officer of Xxxx Atlantic (the "Key Executive"). In this Agreement,
"Xxxx Atlantic Companies" means all of, and "Xxxx Atlantic Company" means any
one of, Xxxx Atlantic, all corporate subsidiaries or other companies affiliated
with Xxxx Atlantic, all companies in which Xxxx Atlantic directly or indirectly
owns a substantial equity interest, and their successors and assigns.
WHEREAS, Xxxx Atlantic and the Key Executive previously entered into an
Executive Retention Agreement, last amended March 14, 1997 (the "Retention
Agreement") and an Employment Agreement, dated as of August 14, 1997 (the "Prior
Employment Agreement"); and
WHEREAS, Xxxx Atlantic and the Key Executive subsequently entered into
an Employment Agreement, dated as of January 1, 1999 (the "Employment
Agreement"), which superseded the Retention Agreement and Prior Employment
Agreement; and
WHEREAS, Xxxx Atlantic and GTE Corporation ("GTE") have agreed to merge
their businesses (the "Merger") pursuant to the terms of an Agreement and Plan
of Merger dated as of July 27, 1998, among Xxxx Atlantic, GTE, and Beta Gamma
Corporation (the "Definitive Agreement"); and
WHEREAS, in contemplation of the closing of the Merger, Xxxx Atlantic
and the Key Executive now wish to amend the Employment Agreement to describe the
Key Executive's position and duties in the post-Merger period and to implement
the terms of succession provided for in Section 7.10 of the Definitive
Agreement;
NOW, THEREFORE, for good and valuable consideration, the Key Executive
and Xxxx Atlantic hereby agree as follows:
1. TERM OF EMPLOYMENT. The term of employment under this Agreement (the
"Term of Employment") shall commence on January 1, 1999 and end on June 30,
2004. The Term of Employment shall consist of a "Pre-Merger Period", an "Initial
Post-Merger Period", and a "Secondary Post-Merger Period". The Pre-Merger Period
shall begin on January 1, 1999 and shall end on the closing date of the Merger.
The Initial Post-Merger period shall begin on the closing date of the Merger and
shall end on the earlier of (i) June 30, 2002, or (ii) the date that Xxxxxxx X.
Xxx ceases to be Co-Chief Executive Officer of the Company for any reason. The
Secondary Post-Merger Period shall begin at the end of the Initial Post-Merger
period and shall end on June 30, 2004.
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2. OBLIGATIONS OF THE XXXX ATLANTIC COMPANIES. During the Term of
Employment, the Xxxx Atlantic Companies shall have the following obligations and
duties and shall provide the following compensation to the Key Executive.
(a) SALARY. Xxxx Atlantic shall compensate the Key Executive
at a base salary of not less than $1,200,000 per year, subject to
annual review by the Board of Directors of Xxxx Atlantic (the "Board")
in January, 2000 and each January thereafter during the Term of
Employment.
(b) STIP. The Key Executive shall participate in the Xxxx
Atlantic Senior Management Short Term Incentive Plan or any successor
to that plan ("STIP") and shall be eligible for a potential maximum
award which, for each performance year during the Term of Employment,
shall be equal to or greater than 2.25 multiplied by the Key
Executive's base salary in effect on January 1 of each such year.
(c) STOCK OPTIONS. The Key Executive shall participate in the
Xxxx Atlantic 1985 Incentive Stock Option Plan or any successor to that
plan (the "Stock Option Plan") and shall receive an annual grant of
options thereunder with a value equal to or greater than 2.5 multiplied
by the Key Executive's base salary in effect on the date of grant.
(d) VACATION. The Key Executive shall have the same holidays
per calendar year recognized by Xxxx Atlantic for its management
employees and shall have an aggregate of 4 management personal days and
5 weeks vacation per calendar year, provided that such management
personal days and vacation days shall be scheduled with due regard to
the needs of the business.
(e) CORPORATE AIRCRAFT. The Key Executive and his immediate
family shall use Xxxx Atlantic corporate aircraft for all business and
personal travel, except that the Key Executive may use commercial
aircraft where use of corporate aircraft is not practical. The Key
Executive shall be responsible for the payment of taxes on imputed
income attributable to personal use of corporate aircraft, except that,
whenever the Key Executive uses corporate aircraft for business
purposes and is accompanied by an immediate family member whose use of
corporate aircraft results in the imputation of income to the Key
Executive, the Company shall pay the Key Executive additional cash
compensation in an amount sufficient to allow the Key Executive to pay
taxes on (i) such additional compensation, plus (ii) the income imputed
to the Key Executive because of such family member's use of corporate
aircraft.
(f) OTHER BENEFIT PLANS. To the extent not otherwise modified
by the terms of this Agreement, the Key Executive shall be eligible to
participate in all of the benefit and compensation plans, and the
programs or perquisites, applicable to senior managers of Xxxx
Atlantic, as those plans and programs may be amended, supplemented,
replaced or terminated from time to time.
(g) CORPORATE HEADQUARTERS. Xxxx Atlantic's headquarters shall
be located in New York City, and the Key Executive's services shall be
rendered primarily at that location.
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3. POSITIONS, DUTIES AND OBLIGATIONS OF THE KEY EXECUTIVE. During the
Term of Employment, the Key Executive shall have the following positions,
duties, and obligations.
(a) POSITION AND DUTIES AS OFFICER. During the Pre-Merger
Period, the Key Executive shall serve as sole Chief Executive Officer
of the Company. During the Initial Post-Merger Period, the Key
Executive shall serve as President of the Company and, together with
Xxxxxxx X. Xxx, as one of two-Co-Chief Executive Officers of the
Company. During the Secondary Post-Merger Period, the Key Executive
shall serve as sole Chief Executive Officer of the Company. During each
such period, the Key Executive shall report solely to the Board, with
such duties and responsibilities as are customarily assigned to his
position, and such other duties and responsibilities not inconsistent
therewith as may from time to time be assigned to him by the Board.
During the Initial Post-Merger Period, the principal executive officers
of Xxxx Atlantic shall report jointly to the Key Executive and Xx. Xxx,
in their capacity as Co-Chief Executive Officers, and during the
Secondary Post-Merger Period, such executive officers shall report
solely to the Key Executive, in his capacity as sole Chief Executive
Officer.
(b) BOARD OF DIRECTORS. The Key Executive shall be nominated
for election to the Board at each annual meeting of shareowners which
occurs prior to the end of the Term of Employment. The Key Executive
shall serve as Chairman of the Board during the Pre-Merger Period, and
shall resign from such position on the closing date of the Merger so
that Xxxxxxx X. Xxx may become Chairman of the Board (as provided in
Section 7.10 of the Definitive Agreement). The Key Executive shall
again become Chairman of the Board on the earlier of (i) June 30, 2004,
or (ii) the date Xx. Xxx ceases to be Chairman of the Board for any
reason, and thereafter the Key Executive shall serve as Chairman of the
Board throughout the remaining Term of Employment.
(c) ENTIRE BUSINESS EFFORTS. The Key Executive shall fully and
faithfully perform the duties and responsibilities described in
Sections (a) and (b) of this Agreement, shall diligently devote his
entire business skill, time and effort to the affairs of the Xxxx
Atlantic Companies in accordance with the duties assigned to him, and
shall perform all such duties, and otherwise conduct himself, in a
manner reasonably calculated in good faith by him to promote the best
interests of the Xxxx Atlantic Companies. Prior to the Key Executive's
termination of employment, except to the extent specifically permitted
by the Board, and except for memberships on boards of directors which
the Key Executive held on January 1, 1999, the Key Executive shall not,
directly or indirectly, render any services of a business, commercial
or professional nature to any other person or organization other than a
Xxxx Atlantic Company or a venture in which a Xxxx Atlantic Company has
a financial interest, whether or not the services are rendered for
compensation.
4. POTENTIAL INTERIM AMOUNT. Effective January 1, 1999, Xxxx Atlantic
shall credit $3,224,483 to the Company Contribution sub-account contained within
the Key Executive's account under the Xxxx Atlantic Income Deferral Plan
("IDP"). This credit shall be allocated in full to the Xxxx Atlantic Shares Fund
maintained under the IDP. The Key Executive shall have the right to change this
allocation from the Xxxx Atlantic Shares Fund to any other permitted investment
option in accordance with the terms of the IDP. The parties acknowledge that
such credit is in complete satisfaction of and will fully discharge any right or
entitlement that the Key Executive may have, now or in the future, to a
Potential Interim Amount ("PIA") under the IDP or under any other benefit plan
maintained by any Xxxx Atlantic Company.
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5. RETENTION AGREEMENT PAYMENTS.
(a) RETENTION AWARD. Effective January 1, 1999, the Key
Executive will forfeit any right or entitlement that he may have, now
or in the future, to the Retention Award provided for in Section 3(e)
of the Retention Agreement. In lieu thereof, Xxxx Atlantic shall credit
the Key Executive's account under the IDP with the number of Xxxx
Atlantic shares comprising, as of January 1, 1999, the Retention Award.
This credit valued as $1,016,636 shall be allocated in full to the Xxxx
Atlantic Shares Fund maintained under the IDP, provided that the Key
Executive shall have the right to change this allocation from the Xxxx
Atlantic Shares Fund to any other permitted investment option in
accordance with the terms of the IDP.
(b) SEVERANCE. Effective January 1, 0000, Xxxx Xxxxxxxx shall
credit the Key Executive's account under the IDP with the value of the
Severance Payment, including the Global Balanced Fund Account, provided
for in Section 3(h) of the Retention Agreement. Such value shall be
determined in accordance with the provisions of the Retention
Agreement, except that the value shall be determined as of December 31,
1998. This credit shall be allocated to the following investment funds
maintained under the IDP: a) $136,146 of the Severance Payment shall be
credited to the Xxxx Atlantic Shares Fund; and b) the balance of the
Severance Payment in the amount of $4,377,290 shall be credited to the
Government Money Market Fund. The Key Executive shall have the right to
change these allocations to any other permitted investment option in
accordance with the terms of the IDP. The parties acknowledge that
these credits to the IDP shall be in complete satisfaction of, and will
fully discharge, any right or entitlement that the Key Executive may
have, now or in the future, to the Severance Payment.
6. SPECIAL INCENTIVE.
(a) INCENTIVE ACCOUNTS. Xxxx Atlantic shall establish three
sub-accounts within the Key Executive's account under the IDP. These
sub-accounts shall consist of the 2001 Account, the 2002 Account and
the 2003 Account (together, the "Incentive Accounts").
(b) CREDIT. Effective January 1, 1999, Xxxx Atlantic shall
credit $6,000,000 to the 2001 Account, $2,000,000 to the 2002 Account,
and $2,000,000 to the 2003 Account. These credits shall be allocated to
the Global Balanced Fund maintained under the IDP, and shall continue
to be allocated to such Fund until the credits vest as provided in
Section 6(c) of this Agreement. The credits, plus any earnings or
losses, shall constitute the "Incentive Awards". The Key Executive
shall have no right or entitlement to these Awards unless, and only to
the extent that, rights to these Awards vest under Section 6(c) of this
Agreement.
(c) VESTING. Provided the Key Executive is an "employee in
good standing" (as hereinafter defined) on the respective vesting dates
described in clauses (i) through (iii), the Key Executive's rights
under the IDP to the Incentive Awards shall vest as follows:
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(i) 2001 Account: if "adjusted earnings per share"
(or "AEPS"), as hereinafter defined, for Xxxx Atlantic for the
fiscal year ending December 31, 2001 are less than 121.0% of
the AEPS for the fiscal year ending December 31, 1998 (the
"1998 Base Year"), the Key Executive shall forfeit any right
or entitlement to the Incentive Award in the 2001 Account; if
such earnings are equal to 121.0% of the 1998 Base Year AEPS,
the Key Executive's rights to 70% of such Incentive Award
shall vest as of December 31, 2001; if such earnings are equal
to or greater than 136.0% of the 1998 Base Year AEPS, the Key
Executive's rights to 130% of such Incentive Award shall vest
as of December 31, 2001; and, if such earnings are between
121.0% and 136.0% of the 1998 Base Year AEPS, the Key
Executive's rights to a pro rated amount of between 70% to
130% of such Incentive Award shall vest as of December 31,
2001;
(ii) 2002 Account: if AEPS for Xxxx Atlantic for the
fiscal year ending December 31, 2002 are less than 107.0% of
the AEPS for the fiscal year ending December 31,2001 (the
"2001 Base Year"), the Key Executive shall forfeit any right
or entitlement to the Incentive Award in the 2002 Account; if
such earnings are equal to 107.0% of the 2001 Base Year AEPS,
the Key Executive's rights to 70% of such Incentive Award
shall vest as of December 31, 2002; if such earnings are equal
to or greater than 112.0% of the 2001 Base Year AEPS, the Key
Executive's rights to 130% of such Retention Award shall vest
as of December 31, 2002; and, if such earnings are between
107.0% and 112.0% of the 2001 Base Year AEPS, the Key
Executive's rights to a pro rated amount of between 70% and
130% of such Incentive Award shall vest as of December 31,
2002; and
(iii) 2003 Account: if AEPS for Xxxx Atlantic for the
fiscal year ending December 31, 2003 are less than 107.0% of
the AEPS for the fiscal year ending December 31, 2002 (the
"2002 Base Year"), the Key Executive shall forfeit any right
or entitlement to the Incentive Award in the 2003 Account; if
such earnings are equal to 107.0% of the 2002 Base Year AEPS,
the Key Executive's rights to 70% of such Incentive Award
shall vest as of December 31, 2003; if such earnings are equal
to or greater than 112.0% of the 2002 Base Year AEPS, the Key
Executive's rights to 130% of such Incentive Award shall vest
as of December 31, 2003; and, if such earnings are between
107.0% and 112.0% of the 2002 Base Year AEPS, the Key
Executive's rights to a pro rated amount of between 70% and
130% of such Incentive Award shall vest as of December 31,
2003.
(d) ADJUSTED EARNINGS PER SHARE AND EARNINGS TARGETS.
"Adjusted earnings per share" for any year shall be the earnings per
share of Xxxx Atlantic adjusted, in the discretion of the Board, to
eliminate or modify any extraordinary, non-reoccurring, one-time or
other such items necessary to more appropriately reflect the ongoing
results of the Xxxx Atlantic businesses. In addition, the Board, in its
discretion, may modify or change the earnings targets set forth in
Section 6(c) of this Agreement to take into account acquisitions,
mergers, dispositions, reorganizations, changes in capital structure,
or other such events.
(e) DEFINITION OF EMPLOYEE IN GOOD STANDING. For purposes of
this Agreement, the Key Executive will be considered to be an "employee
in good standing"
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on a given date if, on or before that date, the Key Executive has not
terminated employment for any reason (other than "constructive
discharge" as defined in Section 8(d) of this Agreement), has not
tendered oral or written notice of intent to resign or retire effective
as of a date on or before the given date (other than pursuant to a
"constructive discharge"), and has not behaved in a manner that would
be grounds for discharge with "cause" as defined in Section 8(b) of
this Agreement.
7. STAY BONUS.
(a) CLOSING OF MERGER. If the Merger occurs pursuant to the
terms of the Definitive Agreement, and if the Key Executive has
remained an Employee in Good Standing of a Xxxx Atlantic Company from
January 1, 1999 to the closing date of the Merger (the "Closing Date"),
then, not later than 30 calendar days following the Closing Date, Xxxx
Atlantic shall pay the Key Executive a special bonus (a "Stay Bonus")
consisting of a single cash payment in an amount equal (before
withholding of taxes) to 1.5 multiplied by the sum, as of the Closing
Date, of (i) the Key Executive's annual rate of base salary, and (ii)
50% of the Key Executive's maximum short-term incentive under the STIP.
(b) BUSINESS DISCRETION OF XXXX ATLANTIC/TERMINATION OF MERGER
PLAN. Nothing in this Agreement is intended to limit the discretion of
any Xxxx Atlantic Company to take any action with regard to the Merger
which Xxxx Atlantic may consider appropriate, including, without
limitation, postponing the Closing Date or terminating the Definitive
Agreement. If the Definitive Agreement is terminated without the Merger
occurring, the Key Executive shall have no right to receive the Stay
Bonus or any portion of such bonus.
8. TERMINATIONS OF EMPLOYMENT.
(a) VOLUNTARY RESIGNATION, RETIREMENT, OR DISCHARGE FOR CAUSE.
In the event that, prior to the end of the Term of Employment, the Key
Executive voluntarily resigns or retires for any reason (except a
"constructive discharge"), or is discharged by Xxxx Atlantic for
"cause", the Key Executive shall forfeit any and all rights to receive
the compensation and benefits set forth in Sections 2, 6 and 7 of this
Agreement which as of the relevant date have not yet been earned under
this Agreement, but shall otherwise be eligible to receive any and all
compensation and benefits for which a senior manager would be eligible
under the applicable provisions of the compensation and benefit plans
in which he is then eligible to participate, as those plans may be
amended from time to time.
(b) CAUSE. For purposes of this Agreement, the term "cause"
shall mean (i) grossly incompetent performance or substantial or
continuing inattention to or neglect of the duties and responsibilities
assigned to the Key Executive; fraud, misappropriation or embezzlement
involving any Xxxx Atlantic Company; or a material breach of the
Employee Code of Business Conduct or Paragraphs 10 (Non-Compete/No
Solicitation), 11 (Return of Property; Intellectual Property Rights) or
12 (Proprietary and Confidential Information) of this Agreement; each
of the foregoing as determined in the reasonable discretion and
judgment of the Board, or (ii) commission of any felony of which the
Key Executive is finally adjudged guilty in a court of competent
jurisdiction. In the event that Xxxx Atlantic terminates the employment
of the Key Executive for Cause, it will state in
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writing the grounds for such termination and provide this statement to
the Key Executive within 10 business days after the date of
termination.
(c) INVOLUNTARY TERMINATIONS. Except in the case of a
discharge for cause, in the event that Xxxx Atlantic discharges the Key
Executive, or the Key Executive is "constructively discharged", prior
to the end of the Term of Employment, then the Key Executive shall be
entitled to receive, as liquidated damages, subject to signing and
delivering the Release (attached as Exhibit A), the following payments,
credits and benefits in lieu of any payment, credit or benefit
otherwise provided in Sections 2, 6 and 7 of this Agreement, provided
that each payment, credit and benefit shall be contingent upon the
absence, at the time such payment, credit or benefit is due, of any act
that would constitute a material breach of this Agreement:
(i) Salary: through the Term of Employment, on a
monthly basis, an amount equal to the monthly salary which
would have been paid to the Key Executive under Section 2 of
this Agreement, assuming that his annual rate of salary would
have been increased each January 1 by the greater of (A) 5%,
or (B) the general percentage increase, if any, approved by
the Human Resources Committee ("HRC") of the Board for
comparable positions in the senior management group based on
the HRC's review of market-median values for such comparable
positions;
(ii) Short-Term Incentives: through the Term of
Employment, on an annual basis, not later than 30 days after
the date on which incentives are awarded by Xxxx Atlantic
under the STIP for the prior year's performance, an amount
equal to the value of the potential maximum award which the
Key Executive would have been entitled to receive under the
STIP based on the maximum STIP award for comparable positions
in the senior management group, without adjustment for
individual performance;
(iii) Special Incentive: if the separation from
service occurs prior to December 31, 2001, vested rights under
the IDP to 100% of the Incentive Awards in each of the
Incentive Accounts; if the separation from service occurs
after December 31, 2001 but before December 31, 2002, vested
rights under the IDP to 100% of the Retention Awards in the
2002 and 2003 Incentive Accounts; and, if the separation from
service occurs after December 31, 2002, vested rights under
the IDP to 100% of the Incentive Award in the 2003 Incentive
Account;
(iv) Stock Options: through the Term of Employment,
on an annual basis, within 30 days of the granting of stock
options for the year to senior managers, an amount equal to
2.5 multiplied by the annual salary amount determined in
accordance with clause (i) above; provided further, with
respect to any and all Xxxx Atlantic stock options which are
outstanding on the date of the Key Executive's separation from
service, the Key Executive shall be deemed, for purposes of
determining the duration of the Key Executive's right to
exercise any and all such stock options, to have remained in
active service with Xxxx Atlantic continuously through the
Term of Employment, and then to have separated from service
with whatever rights would then be applicable to a holder of
such options under the Stock Option Plan;
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(v) IDP Benefits: through the Term of Employment,
company credits to the Company Contribution sub-account
contained within the Key Executive's account under the IDP to
the fullest extent provided, and at the same time such amounts
would have been credited, as if the Key Executive had remained
actively employed until the end of the Term of Employment and
received the salary and maximum STIP awards determined in
accordance with clauses (i) and (ii) above; provided further,
that Xxxx Atlantic shall also credit to such IDP sub-account
an amount each year equal to the sum of (A) the amount which
the Key Executive would otherwise have been eligible to
receive as company matching contributions under the Xxxx
Atlantic Savings Plan or any successor to that plan (if he had
fully participated in contributions to that plan) and (B) the
pay credits which the Key Executive would otherwise have been
eligible to receive under the Xxxx Atlantic Cash Balance Plan
or any successor to that plan;
(vi) Split- Dollar Benefits: regardless of whether
the Key Executive is retirement eligible at the time of his
separation from service, split-dollar life insurance benefits
applicable to a retiring participating senior manager, under
the terms of the Xxxx Atlantic Senior Management Estate
Management Program;
(vii) Flexible Perquisites: through the Term of
Employment, on a monthly basis, $3,000 in lieu of the Flexible
Perquisites Account allowance that the Key Executive would
have been entitled to receive;
(viii) Stay Bonus: if the Merger subsequently occurs
pursuant to the Definitive Agreement, a single cash payment,
not later than 30 days after the Closing Date of the Merger,
which shall be equal (before withholding of taxes) to the Stay
Bonus which would otherwise have become payable under Section
7(a) of this Agreement, provided that the date of separation
from service shall be substituted for the Closing Date for
purposes of calculating the dollar amount of such payment; and
(ix) Other: accommodations for travel, office support
and facilities, executive assistance and other perquisites as
provided previous retiring Chairmen;
provided, however, that if Xxxx Atlantic should discharge the Key
Executive without cause after June 30, 2001, or the Key Executive
should be constructively discharged after such date, the Term of
Employment, for purposes of calculating liquidated damages under this
Section 8(c), shall end on the third-year anniversary of the date of
the Key Executive's discharge or constructive discharge; and, provided
further, that if the Key Executive should be discharged without cause
or constructively discharged at any time, the liquidated damages
provided for in clauses (i) through (ix) above shall be supplemented by
an amount equal to the excess, if any, of (i) the remuneration earned
by the Chairman and Chief Executive Officer of the Company from the
date of the Key Executive's discharge through the remaining Term of
Employment, over (ii) the liquidated damages provided for in clauses
(i) through (ix) above.
(d) CONSTRUCTIVE DISCHARGE. The Key Executive shall be deemed
to have been "constructively discharged" for purposes of this Agreement
if the Key Executive is
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an Employee in Good Standing and he terminates his employment for any
of the following reasons: Xxxx Atlantic (or the Key Executive's
employing company) has materially breached this Agreement; the Key
Executive's responsibilities, as described in Section 3(a) hereof, have
been significantly reduced in type or scope; there has been a
significant adverse change in the Key Executive's reporting
relationship, as described in Section 3(a) hereof; there has been a
significant adverse change in the Key Executive's relative compensation
(including a negative individual performance adjustment which causes
the Key Executive's STIP award for a particular year to be reduced by
10% or more); the Company requires that the Key Executive's services be
rendered primarily at a location or locations other than that provided
in Section 2(g) of this Agreement; during the Pre-Merger Period, the
Key Executive is removed from the position of Chairman of the Board of
the Company (provided that the Key Executive's resignation from that
position upon the closing of the Merger, as provided in Section 3(b)
hereof, shall not constitute grounds for constructive discharge); at
the end of the Initial Post-Merger Period, the Key Executive is not
appointed sole Chief-Executive Officer of the Company; on the date
provided in Section 3(b) of this Agreement, the Key Executive does not
succeed Xxxxxxx X. Xxx as Chairman of the Board; following his
appointment as Chairman of the Board, the Key Executive is removed from
such position; or there has been a "change of control" of Xxxx
Atlantic. For purposes of this Agreement, a "change of control" of Xxxx
Atlantic shall mean that any of the following events or circumstances
has occurred:
(i) any "Person" (as such term is used in sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934)
becomes a beneficial owner, directly or indirectly, of shares
of one or more classes of stock of Xxxx Atlantic representing
20% or more of the total voting power of Xxxx Atlantic's then
outstanding voting stock, provided, however, that if such
beneficial ownership is acquired in a transaction that has
been negotiated and approved by the Board, such acquisition of
beneficial ownership shall not be treated as a change of
control of Xxxx Atlantic for purpose of this Agreement;
(ii) a tender offer (for which a filing has been or
is required to be made with the Securities and Exchange
Commission under section 14(d) of the Securities Exchange Act
of 1934) is made for the stock of Xxxx Atlantic, and the
Person making the offer owns or has accepted for payment
shares of one or more classes of Xxxx Atlantic stock which
represent, when combined with any shares otherwise acquired
and owned by such Person, 20% or more of the total voting
power of Xxxx Atlantic's then outstanding stock, provided,
however, that if such tender offer has been negotiated and
approved by the Board, such tender offer and stock acquisition
shall not be treated as a change of control of Xxxx Atlantic
for purposes of this Agreement; or
(iii) there ceases to be a majority of the Board
comprised of individuals who either (A) have been members of
the Board continuously for a period of not less than two
years, or (B) are new directors whose election by the Board or
nomination for election by shareowners of Xxxx Atlantic was
approved by a vote of at least two-thirds of the directors
then in office who either were directors described in clause
(A) hereof or whose election or nomination for election was
previously so approved.
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(e) DISABILITY OR DEATH. If, during the Term of Employment at
a time when the Key Executive is an Employee in Good Standing, the Key
Executive terminates employment on account of disability (within the
meaning of the applicable disability benefit plans in which the Key
Executive participates from time to time) or dies, and provided Xxxx
Atlantic receives a Release in the form of Exhibit A from the Key
Executive (in the case of disability) or from his estate (in the case
of death), then Xxxx Atlantic shall pay to the Key Executive (in the
case of disability) or pay to the Key Executive's estate (in the case
of death) the amounts determined as if, at the date of termination of
employment on account of disability or death, the Key Executive had
been terminated without cause under Section 8(c) of this Agreement;
provided, however, that, regardless of the date of death or disability,
the Term of Employment shall end on June 30, 2004 for purposes of
calculating the amount due the Key Executive or his estate pursuant to
this Section 8(e); provided further, that in lieu of the amount
described in Section 8(c)(viii) of this Agreement (the "Stay Bonus
Amount"), the Key Executive (or his estate) shall receive the Stay
Bonus Amount multiplied by the following fraction: the numerator shall
be the number of days that have elapsed between the date of this
Agreement and the date of the Key Executive's death or disability, and
the denominator shall be the number of days that have elapsed between
the date of this Agreement and the Closing Date of the Merger; and,
provided finally, that in the case of a termination of employment on
account of disability, the amounts paid pursuant to Sections 8(c)(i)
and (ii) of this Agreement shall reduce dollar for dollar the
disability benefits which would otherwise be payable to the Key
Executive during the remainder of the Term of Employment under the
various disability benefit plans in which he participates.
(f) BOARD APPROVAL OF CERTAIN ACTIONS. Notwithstanding any
other provision of this Agreement, prior to July 1, 2002, the Key
Executive's employment as Co-Chief Executive Officer or sole Chief
Executive Officer, as the case may be, may not be terminated by Xxxx
Atlantic, either for cause or without cause, unless such action is
approved by affirmative vote of at least three-quarters of the entire
membership of the Board. In addition, if the Key Executive has been
appointed Chairman of the Board prior to July 1, 2002, he may not be
removed from such position prior to that date unless such action is
approved by affirmative vote of at least three-quarters of the entire
membership of the Board.
9. PAYMENTS SUBJECT TO EXCISE TAX. In the event that it shall be
determined, in the manner described in Exhibit B, that any payment or
distribution by any Xxxx Atlantic Company to or for the benefit of the Key
Executive, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, Xxxx
Atlantic shall pay the Key Executive an additional amount, determined in
accordance with and subject to the provisions of Exhibit B, to compensate the
Key Executive for his excise tax cost.
10. PROHIBITION AGAINST COMPETITIVE ACTIVITIES.
(a) PROHIBITED CONDUCT BY THE KEY EXECUTIVE. During the period
of the Key Executive's employment with any Xxxx Atlantic Company, and
for a period of 24 months following the Key Executive's termination of
employment for any reason from all Xxxx Atlantic Companies, the Key
Executive, without the prior written consent of the Board, shall not:
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11
(i) personally engage in "Competitive Activities" (as
defined in Section 9(b) of this Agreement); or
(ii) work for, own, manage, operate, control or
participate in the ownership, management, operation or control
of, or provide consulting or advisory services to, any
individual, partnership, firm, corporation or institution
engaged in Competitive Activities, or any company or person
affiliated with such person or entity engaged in Competitive
Activities; provided, however, that the Key Executive's
purchase or holding, for investment purposes, of securities of
a publicly-traded company shall not constitute "ownership" or
"participation in ownership" for purposes of this paragraph so
long as the Key Executive's equity interest in any such
company is less than a controlling interest.
(b) COMPETITIVE ACTIVITIES. For purposes of this Agreement,
"Competitive Activities" means business activities relating to products
or services of the same or similar type as the products or services
which (i) are sold (or, pursuant to an existing business plan, will be
sold) to paying customers of one or more Xxxx Atlantic Companies, and
(ii) for which the Key Executive then has responsibility to plan,
develop, manage, market or oversee, or had any such responsibility
within the prior 24 months. Notwithstanding the previous sentence, a
business activity will not be treated as a Competitive Activity if the
geographic marketing area of the relevant products or services sold by
the Key Executive or a third party does not overlap with the geographic
marketing area for the applicable products and services of the Xxxx
Atlantic Companies.
(c) NO SOLICITATION OF XXXX ATLANTIC EMPLOYEES. During the
period of the Key Executive's employment with any Xxxx Atlantic
Company, and for a period of 24 months following the Key Executive's
termination of employment for any reason from all Xxxx Atlantic
Companies, the Key Executive shall not, without the consent of the
Board:
(i) recruit or solicit any active employee of any
Xxxx Atlantic Company for employment or for retention as a
consultant or service provider;
(ii) hire or participate (with another company or
third party) in the process of hiring (other than for a Xxxx
Atlantic Company) any person who is then an active employee of
any Xxxx Atlantic Company, or provide names or other
information about Xxxx Atlantic employees to any person or
business (other than a Xxxx Atlantic Company) under
circumstances which could lead to the use of that information
for purposes of recruiting or hiring; or
(iii) interfere with the relationship of any Xxxx
Atlantic Company with any of its employees, agents, or
representatives.
(d) WAIVER. Nothing in this Agreement shall bar the Key
Executive from requesting, at the time of the Key Executive's
termination of employment or at any time thereafter, that the Board
waive, in its sole discretion, Xxxx Atlantic's rights to enforce some
or all of this Section.
11. RETURN OF PROPERTY; INTELLECTUAL PROPERTY RIGHTS. The Key Executive
agrees that on or before the Key Executive's termination of employment for any
reason with all Xxxx Atlantic Companies, the Key Executive shall return to the
appropriate Xxxx Atlantic Company all
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Employment Agreement Page 11 Xxxx X. Xxxxxxxxxx
12
property owned by each such company or in which any such company has an
interest. The Key Executive acknowledges that Xxxx Atlantic or an applicable
Xxxx Atlantic Company is the rightful owner of any programs, ideas, inventions,
discoveries, copyright material or trademarks which the Key Executive may have
originated or developed, or assisted in originating or developing, during the
Key Executive's period of employment with any Xxxx Atlantic Company, where any
such origination or development involved the use of company time or resources,
or the exercise of the Key Executive's responsibilities for or on behalf of any
such company. The Key Executive shall at all times, both before and after
termination of employment, cooperate with Xxxx Atlantic in executing and
delivering documents requested by any Xxxx Atlantic Company, and taking any
other actions, that are necessary or requested by Xxxx Atlantic to assist any
Xxxx Atlantic Company in patenting, copyrighting or registering any programs,
ideas, inventions, discoveries, copyright material or trademarks, and to vest
title thereto in the applicable company.
12. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Key Executive shall
at all times preserve the confidentiality of all proprietary information and
trade secrets of any and all Xxxx Atlantic Companies, except to the extent that
disclosure of such information is legally required. "Proprietary information"
means information that has not been disclosed to the public, and which is
treated as confidential within the business of any Xxxx Atlantic Company.
13. NONDISCLOSURE. Unless and until the precise terms of this
Agreement, and the precise amount of any payment eligible to be paid or actually
paid under this Agreement, are disclosed in writing to the public by any Xxxx
Atlantic Company, the Key Executive shall hold the terms of this Agreement and
the amount of any payment, benefit, credit, or right hereunder in strict
confidence, except that the Key Executive may disclose such details (i) on a
confidential basis to his spouse (if any), and to any financial counselor, tax
adviser or legal counsel retained by the Key Executive, or (ii) to the extent
such disclosure is legally required.
14. ASSIGNMENT BY XXXX ATLANTIC. The obligations of Xxxx Atlantic
hereunder shall be the obligations of any and all successors and assigns of Xxxx
Atlantic. Xxxx Atlantic may assign this Agreement without the Key Executive's
consent to any company that acquires all or substantially all of the stock or
assets of Xxxx Atlantic, or into which or with which Xxxx Atlantic is merged or
consolidated. This Agreement may not be assigned by the Key Executive, and no
person other than the Key Executive (or the Key Executive's estate) may assert
the rights of the Key Executive under this Agreement.
15. NON-BENEFIT BEARING PAYMENTS. The amounts to be paid, provided or
credited under Sections 4, 5, 6, 7, 8, and 9 of this Agreement shall not be
treated as compensation for purposes of computing or determining any additional
benefit payable under any savings plan, insurance plan, pension plan, or other
employee benefit plan maintained by any Xxxx Atlantic Company.
16. DEFERRALS UNDER IDP. Amounts otherwise payable to the Key Executive
under Sections 7 or 8 of this Agreement may be deferred under the IDP or any
successor plan, but only if and to the extent that a valid deferral election is
in place and deferral of such amounts is permitted under the terms of the IDP or
successor plan.
17. FORFEITURE OF IDP AMOUNTS. The Key Executive acknowledges that if
he breaches Section 10 (Non-Compete/No Solicitation) of this Agreement or
engages in serious misconduct that is contrary to written policies of Xxxx
Atlantic and is harmful to any Xxxx Atlantic
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Employment Agreement Page 12 Xxxx X. Xxxxxxxxxx
13
Company or its reputation, he may forfeit any balance remaining in any Company
Contribution sub-account contained within his account under the IDP.
18. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions of this Agreement shall not be deemed a waiver of
such term, covenant or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
19. ADDITIONAL REMEDIES. In addition to any other rights or remedies,
whether legal, equitable or otherwise, which each of the parties may have, the
Key Executive acknowledges that Sections 10 (Non-Compete/No Solicitation), 11
(Return of Property), 12 Proprietary and Confidential Information), and 13
(Nondisclosure) of this Agreement are essential to the continued good will and
profitability of Xxxx Atlantic and further acknowledges that the application and
operation thereof shall not involve a substantial hardship upon the Key
Executive's future livelihood. The parties hereto further recognize that
irreparable damage to Xxxx Atlantic will result in the event that these sections
of the Agreement are not specifically enforced and that monetary damages will
not adequately protect Xxxx Atlantic from a breach of these sections of the
Agreement. If any dispute arises concerning the violation by the Key Executive
of these sections of the Agreement, the parties hereto agree that an injunction
may be issued restraining such violation pending the determination of such
controversy, and no bond or other security may be required in connection
therewith.
20. REFORMATION AND SEVERABILITY. The Key Executive and Xxxx Atlantic
agree that the agreements contained herein and within the Release shall each
constitute a separate agreement independently supported by good and adequate
consideration, and shall each be severable from the other provisions of the
Agreement and the Release. If an arbitrator or court of competent jurisdiction
determines that any term, provision or portion of this Agreement or the Release
is void, illegal or unenforceable, the other terms, provisions and portions of
this Agreement or the Release shall remain in full force and effect and the
terms, provisions and portions that are determined to be void, illegal or
unenforceable shall either be limited so that they shall remain in effect to the
extent permissible by law, or such arbitrator or court shall substitute, to the
extent enforceable, provisions similar thereto or other provisions, so as to
provide to Xxxx Atlantic, to the fullest extent permitted by applicable law, the
benefits intended by this Agreement and the Release.
21. GTE MERGER. If the Merger occurs pursuant to the Definitive
Agreement, any action taken to implement succession as contemplated under
Section 7.10 of the Definitive Agreement shall not result in a breach of this
Agreement or constitute grounds for constructive discharge under Section 8(d) of
this Agreement, and this Agreement shall be amended to the extent necessary to
permit such succession.
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Employment Agreement Page 00 Xxxx X. Xxxxxxxxxx
00
00. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
messenger, transmitted by telex or telegram or mailed by registered or certified
mail, return receipt requested and postage prepaid, as follows:
(a) If to Xxxx Atlantic, to:
Xxxx Atlantic Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President
and General Counsel
(b) If to the Key Executive, to:
[Address]
[Address]
or to such other person or address as either of the parties shall hereafter
designate to the other from time to time by similar notice.
23. ARBITRATION. Any dispute arising out of or relating to this
Agreement, except any dispute arising out of or relating to Sections 10 through
13 of this Agreement, shall be settled by final and binding arbitration, which
shall be the exclusive means of resolving any such dispute, and the parties
specifically waive all rights to pursue any other remedy, recourse or relief.
With respect to disputes by Xxxx Atlantic arising out of or relating to Sections
10 through 13 of this Agreement, Xxxx Atlantic has retained all its rights to
legal and equitable recourse and relief, including but not limited to injunctive
relief. Notice of the existence of a dispute which a party wishes to have
resolved by arbitration shall be provided pursuant to Section 22 of this
Agreement. The arbitration shall be expedited and conducted in New York, New
York pursuant to the Center for Public Resources ("CPR") Rules for
Non-Administered Arbitration of Employment Disputes in effect at the time of
notice of the dispute before one neutral arbitrator appointed by CPR from the
CPR Panel of Neutrals unless the parties mutually agree to the appointment of a
different neutral arbitrator. The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon the award
rendered by the arbitration may be entered by any court having jurisdiction. The
finding of the arbitrator may not change the express terms of this Agreement and
shall be consistent with the arbitrator's understanding of the findings a court
of proper jurisdiction would make in applying the applicable law to the facts
underlying the dispute. In no event whatsoever shall such an arbitration award
include any award of damages other than the amounts in controversy under this
Agreement. The parties waive the right to recover, in such arbitration, punitive
damages.
24. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
25. ENTIRE AGREEMENT. Except for the terms of other compensation and
benefit plans in which the Key Executive participates, this Agreement shall set
forth the entire understanding of Xxxx Atlantic and the Key Executive and shall
supersede all prior agreements and communications, whether oral or written,
between Xxxx Atlantic and the
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Employment Agreement Page 14 Xxxx X. Xxxxxxxxxx
15
Key Executive including, without limitation, the Retention Agreement and the
Prior Employment Agreement. This Agreement shall not be modified except by
written agreement of the Key Executive and Xxxx Atlantic; provided, further,
that if the Merger occurs pursuant to the Definitive Agreement, Xxxx Atlantic
shall cause to be maintained, through June 30, 2002, Section 5.11 of its Bylaws
which requires (among other things) a three-quarters vote of the entire Board in
order to amend or modify the terms of this Agreement.
26. TAX WITHHOLDING. Any payment made pursuant to this Agreement will
be subject to applicable withholding taxes under federal, state and local law.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of January 1, 1999, and have amended and restated this Agreement as of June
30, 2000.
XXXX ATLANTIC CORPORATION
By:
--------------------------
THE KEY EXECUTIVE
-----------------------------
Xxxx X. Xxxxxxxxxx
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16
EXHIBIT A
THIS RELEASE (the "Release") is entered into by _____________________
(the "Key Executive"), for the benefit of XXXX ATLANTIC CORPORATION (the
"Company"), and all companies, and their officers, directors and employees,
which are affiliated with the Company or in which the Company owns a substantial
economic interest, and any benefit plan maintained by any Xxxx Atlantic Company
(or any plan administrator of any such plan). Capitalized terms in this document
which are not otherwise defined herein shall have the respective meanings
assigned to them in the Employment Agreement between the Company and the Key
Executive, dated ____________, _____ (the "Agreement").
WHEREAS, the Key Executive has separated from service with the Key
Executive's employing company (the "Employer") on __________ , _____ (the
"Separation Date") pursuant to the terms of the Agreement, and the Key Executive
wishes to execute this Release as contemplated under the terms of the Agreement.
NOW, THEREFORE, the Key Executive affirms as follows:
1. The Key Executive hereby waives any and all claims which the Key
Executive might have against any Xxxx Atlantic Company, and any benefit plan
maintained by any Xxxx Atlantic Company (or any plan administrator of any such
plan), for salary payments, vacation pay, incentives, bonuses, or other
remuneration or employee benefits of any kind, with the exception of any
obligations of the Company or Employer arising after the Separation Date under
Sections 8 and 9 of the Agreement.
2. Except as provided in Section 1 hereof, the Key Executive hereby
voluntarily releases and discharges each and every Xxxx Atlantic Company and
their successors and assigns, and the directors, officers, employees, and agents
of each of them, and any benefit plan maintained by any Xxxx Atlantic Company
(or any plan administrator of any such plan), of and from any and all debts,
obligations, claims, demands, judgments or causes of action of any kind
whatsoever, known or unknown, in tort, contract, by statute or on any other
basis, for equitable relief, compensatory, punitive or other damages, expenses
(including attorneys' fees), reimbursements or costs of any kind which the Key
Executive might have or assert against any of said entities or persons as of the
Separation Date by reason of the Key Executive's employment by any Xxxx Atlantic
Company or the termination of said employment, and all circumstances related
thereto, including but not limited to, any and all claims, demands, rights and
causes of action, including those which might arise out of allegations relating
to a claimed breach of an alleged oral or written employment contract, or
relating to purported employment discrimination or civil rights violations, such
as, but not limited to, those arising under Title VII of the Civil Rights Act of
1964 (42 U.S.C. Section 2000e et seq.), the Civil Rights Acts of 1866 and 1871
(42 U.S.C. Sections 1981 and 1983), Executive Order 11246, as amended, the Age
Discrimination in Employment Act of 1967, as amended (29 U.S.C. Section 621 et
seq.), the Equal Pay Act of 1963 (29 U.S.C. Section 206(d)(1)), the
Rehabilitation Act of 1973 (29 U.S.C. Sections 701-794), the Civil Rights Act of
1991, the Americans with Disabilities Act, the Employee Retirement Income
Security Act ("ERISA") or any other applicable federal, state or local
employment discrimination statute or ordinance.
17
3. The Key Executive hereby reaffirms all covenants and promises given
by the Key Executive under the Agreement, and all other terms and conditions of
the Agreement, in all respects.
4. Should any provision of this Release be declared or be determined by
any court to be illegal or invalid, the validity of the remaining parts, terms
or provisions shall not be affected thereby, and said illegal or invalid part,
term or provision shall be deemed not to be a part of this Release.
STATEMENT BY THE KEY EXECUTIVE WHO IS SIGNING BELOW: THE COMPANY HAS
ADVISED ME IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS
RELEASE. THE COMPANY HAS FULFILLED ITS DUTIES TO ME UNDER THE OLDER WORKERS
BENEFITS PROTECTION ACT, AND I ACKNOWLEDGE THAT THIS RELEASE IS LEGALLY
ENFORCEABLE BY THE COMPANY. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE
PROVISIONS OF THIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY (OVER A
PERIOD OF SUBSTANTIALLY MORE THAN 21 DAYS) TO CONSULT WITH MY PERSONAL TAX,
FINANCIAL AND LEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO
BE LEGALLY BOUND BY ITS TERMS. I UNDERSTAND THAT I MAY REVOKE THIS RELEASE
WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE WILL NOT BECOME
ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN-DAY PERIOD HAS EXPIRED.
THE UNDERSIGNED, intending to be legally bound, has executed this
Release as of the ___ day of _________, _____, that being the Key Executive's
Separation Date.
THE KEY EXECUTIVE
Signed:
--------------------------------
THIS IS A RELEASE
READ CAREFULLY BEFORE SIGNING
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18
EXHIBIT B
DETERMINATION OF GROSS-UP PAYMENT. In the event that any payment or
benefit received or to be received by the Key Executive pursuant to the terms of
the Agreement (the "Contract Payments") or of any other plan, arrangement or
agreement of any Xxxx Atlantic Company ("Other Payments" and, together with the
Contract Payments, the "Payments") would be subject to the excise tax (the
"Excise Tax") imposed by section 4999 of the Internal Revenue Code (the "Code")
as determined in accordance with this paragraph, Xxxx Atlantic shall pay to the
Key Executive, at the time specified below, an additional amount (the "Gross-Up
Payment") such that the net amount retained by the Key Executive, after
deduction of the Excise Tax on Payments and any federal, state and local income
tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or
additions to tax payable by the Key Executive with respect thereto, shall be
equal to the total present value (using the applicable federal rate (as defined
in Section 1274(d) of the Code) in such calculation) of the Payments at the time
such Payments are to be made. For purposes of determining whether any of the
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(i) the total amount of the Payments shall be treated as "parachute payments"
within the meaning of section 280G(b)(2) 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, except to the extent that, in the written opinion
of independent counsel selected by Xxxx Atlantic and reasonably acceptable to
the Key Executive ("Independent Counsel"), a Payment (in whole or in part) does
not constitute a "parachute payment" within the meaning of section 280G(b)(2) of
the Code, or such "excess parachute payments" (in whole or in part) are not
subject to the Excise Tax; (ii) the amount of the Payments that shall be treated
as subject to the Excise Tax shall be equal to the lesser of (A) the total
amount of the Payments or (B) the amount of "excess parachute payments" within
the meaning of section 280G(b)(1) of the Code (after applying clause (i)
hereof); and (iii) the value of any noncash benefits or any deferred payment or
benefit shall be determined by Independent Counsel 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 Key Executive shall be
deemed to pay federal income taxes at the highest marginal rates of federal
income taxation applicable to individuals in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the highest
marginal rates of taxation applicable to individuals as are in effect in the
state and locality of the Key Executive's residence in the calendar year in
which the Gross-Up Payment is to be made, net of the maximum reduction in
federal income taxes that can be obtained from deduction of such state and local
taxes, taking into account any limitations applicable to individuals subject to
federal income tax at the highest marginal rates.
TIMING OF GROSS-UP PAYMENT. The Gross-Up Payments provided for in this
Exhibit B shall be made upon the earlier of (i) the payment to the Key Executive
of any Payment or (ii) the imposition upon the Key Executive or payment by the
Key Executive of any Excise Tax.
ADJUSTMENTS TO GROSS-UP PAYMENT. If it is established pursuant to a
final determination of a court or an Internal Revenue Service proceeding or the
written opinion of Independent Counsel that the Excise Tax is less than the
amount previously taken into account hereunder, the Key Executive shall repay to
Xxxx Atlantic within thirty (30) days of the Key Executive's receipt of notice
of such final determination or opinion the portion of
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Exhibits to Employment Agreement Page 18 Xxxx X. Xxxxxxxxxx
19
the Gross-Up Payment attributable to such reduction (plus the 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 Key Executive if
such repayment results in a reduction in Excise Tax or a federal, state and
local income tax deduction) plus any interest received by the Key Executive on
the amount of such repayment, provided, however, that if any such amount has
been paid by the Key Executive as an Excise Tax or other tax, the Key Executive
shall cooperate with Xxxx Atlantic in seeking a refund of any tax overpayments,
and shall not be required to make repayments to Xxxx Atlantic until the overpaid
taxes and interest thereon are refunded to the Key Executive. If it is
established pursuant to a final determination of a court or an Internal Revenue
Service proceeding or the written opinion of Independent Counsel that the Excise
Tax exceeds the amount taken into account hereunder (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-Up Payment), Xxxx Atlantic shall make an additional Gross-Up Payment in
respect of such excess within thirty (30) days of Xxxx Atlantic's receipt of
notice of such final determination or opinion.
CHANGE IN LAW OR INTERPRETATION. In the event of any change in, or
further interpretation of, sections 280G or 4999 of the Code and the regulations
promulgated thereunder, the Key Executive shall be entitled, by written notice
to Xxxx Atlantic, to request a written opinion of Independent Counsel regarding
the application of such change to any of the foregoing, and Xxxx Atlantic shall
use its best efforts to cause such opinion to be rendered as promptly as
practicable. All fees and expenses of Independent Counsel incurred in connection
with this Exhibit B shall be borne by Xxxx Atlantic.
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