EXHIBIT 10.6
CHANGE IN CONTROL AGREEMENT
This Agreement, dated November __, 2001, is made by and
between IPC Information Systems, Inc., a Delaware Corporation (as hereinafter
defined, the "Corporation"), and __________ (the "Executive").
WHEREAS, the Board (as hereinafter defined) recognizes that
the possibility of a Change in Control (as hereinafter defined) of the
Corporation exists and that such possibility, and the uncertainty it may cause,
may result in the departure or distraction of key management employees of the
Corporation; and
WHEREAS, the Executive is a key management employee of the
Corporation or of a Subsidiary; and
WHEREAS, the Board has determined that the Corporation should
encourage the continued employment of the Executive by the Corporation or a
Subsidiary and the continued dedication of the Executive to his assigned duties
without distraction as a result of the circumstances arising from the
possibility of a Change in Control;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Corporation and the Executive hereby agree as
follows:
1. Defined Terms. For purposes of this Agreement, the
following terms shall have the meanings indicated below:
(A) "Board" shall mean the Board of Directors of the
Corporation, as constituted from time to time.
(B) "Cause" for termination by the Corporation of the
Executive's employment shall mean (i) the willful failure by the
Executive substantially to perform the Executive's duties with the
Corporation or a Subsidiary, other than any failure resulting from the
Executive's incapacity due to physical or mental illness or any actual
or anticipated failure after the issuance of a Notice of Termination
for Good Reason by the Executive in accordance with paragraph (A) of
Section 6, that continues for at least 30 days after the Board delivers
to the Executive a written demand for performance that identifies
specifically and in detail the manner in which the Board believes that
the Executive willfully has failed substantially to perform the
Executive's duties, (ii) the willful engaging by the Executive in
misconduct that is demonstrably and materially injurious to the
Corporation or any Subsidiary, monetarily or otherwise or (iii) an act
or acts on Executive's part constituting (x) a felony under the laws of
the United States or any state thereof or (y) a misdemeanor involving
moral turpitude.
(C) A "Change in Control" shall mean, if subsequent to the
date of this Agreement:
(i) any Person (other than Global Crossing
Lt. and its direct and indirect majority-owned subsidiaries)
becomes the Beneficial Owner (as such term is defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of the securities of the Corporation
representing more than 50% of the combined voting power of
then outstanding securities of the Corporation or,
(ii) the Corporation's complete liquidation
or the sale or disposition by the Corporation of all or
substantially all of the Corporation's assets, other than the
Corporation's liquidation into a wholly-owned subsidiary.
(D) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(E) "Corporation" shall mean IPC Information Systems, Inc. and
any successor to its business or assets, by operation of law or
otherwise.
(F) "Date of Termination" shall have the meaning stated in
paragraph (B) of Section 6 hereof.
(G) "Disability" shall be deemed the reason for the
termination by the Corporation of the Executive's employment, if the
Executive is unable to engage in any substantial gainful activity by
reason of a medically determinable physical or mental impairment which
constitutes a permanent and total disability, as defined in Section
22(e)(3) of the Code (or any successor section thereto).
(H) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(I) "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 of the following:
(i) the assignment to the Executive of any
duties inconsistent with the Executive's status as a key
management employee of the Corporation or of a Subsidiary 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 in the Executive's annual
base salary, target annual bonus, or long-term incentive
opportunity to any amount less than the Executive's annual
base salary, target bonus, or long-term incentive opportunity,
respectively, as in effect immediately prior to the Change in
Control. For this purpose, long-term incentive opportunities
shall be measured as of the date of
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grant using a methodology consistent with prior long-term
incentive grant practices.
(iii) the relocation of the Executive's
principal place of employment to a location more than 50 miles
from the location of such principal place of employment
immediately prior to the Change in Control, except for
required business travel to an extent substantially consistent
with the Executive's business travel obligations immediately
prior to the Change in Control;
(iv) the failure to pay the Executive any
portion of the Executive's current compensation, or to pay or
reimburse the Executive for any expenses incurred by him for
required business travel and documented in accordance with
reasonable Corporation policy;
(v) the failure by the Corporation to
continue to provide the Executive with benefits as favorable
in the aggregate and in all material respects as those enjoyed
by the Executive under the Corporation's retirement, life
insurance, medical, health and accident, disability, or other
employee benefit plans in which the Executive was
participating immediately prior to the Change in Control; or
the failure by the Corporation to provide the Executive with
the number of paid vacation days to which the Executive was
entitled in accordance with the Corporation's normal vacation
policy in effect immediately prior to the Change in Control;
or
(vi) any purported termination by the
Corporation of the Executive's employment that is not effected
in accordance with a Notice of Termination satisfying the
requirements of paragraph (A) of Section 6 hereof.
(J) "Notice of Termination" shall have the meaning stated in
paragraph (A) of Section 6 hereof.
(K) "Payment Trigger" shall mean the occurrence of both of (i)
a Change in Control during the term of this Agreement and (ii) at any
time on or after such Change in Control, but before the end of the
Protected Period, the termination of the Executive's employment with
the Corporation or a Subsidiary for any reason other than (A) by the
Executive without Good Reason, (B) by the Corporation (or a Subsidiary)
as a result of the Disability of the Executive or with Cause or (C) as
a result of the death of the Executive; provided, however, that if the
Executive's employment is terminated prior to a Change in Control at
the request of a Person engaged in a transaction or series of
transactions that would result in a Change in Control, such termination
shall be deemed to occur during the Protected Period. Any transfer of
the Executive's employment from the Corporation to a Subsidiary, from a
Subsidiary to the Corporation, or from one Subsidiary to another
Subsidiary shall not by itself constitute a termination of the
Executive's employment for purposes of this Agreement.
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(L) "Person" shall have the meaning used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended from time to
time.
(M) "Protected Period" shall mean the 24-month period
immediately following the month in which a Change in Control occurs.
(N) "Subsidiary" shall mean any corporation or other entity or
enterprise, whether incorporated or unincorporated, of which at least a
majority of the securities or other interests having by their terms
ordinary voting power to elect a majority of the board of directors or
others serving similar functions with respect to such corporation or
other entity or enterprise is owned by the Corporation, directly or
indirectly.
2. Term of Agreement. This Agreement will become effective on the date
hereof and shall continue in effect through December 31, 2002 (the "Initial
Term").
The Initial Term of this Agreement automatically shall be extended for
one (1) additional year at the end of the Initial Term, and then again after
each successive one (1) year period thereafter (each such one (1) year period
following the Initial Term a "Successive Period"). However, either party may
terminate this Agreement at the end of the Initial Term, or at the end of any
Successive Period thereafter, by giving the other party written notice of intent
not to renew, delivered at least six (6) months prior to the end of such Initial
Term or Successive Period. If such notice is properly delivered by either party,
this Agreement, along with all corresponding rights, duties, and covenants shall
automatically expire at the end of the Initial Term or Successive Period then in
progress.
In the event that a Change in Control of the Corporation occurs (as
such term is herein defined) during the Initial Term or any Successive Period,
upon the effective date of such Change in Control, the term of this Agreement
shall automatically and irrevocably be renewed for a period of twelve (12) full
calendar months from the effective date of such Change in Control. This
Agreement shall thereafter automatically terminate following the twelve (12)
month Change-in-Control renewal period. Further, this Agreement shall be
assigned to, and shall be assumed by the purchaser in such Change in Control, as
further provided in Section 9 herein.
3. General Provisions.
(A) The Corporation hereby represents and warrants to the Executive as
follows: The execution and delivery of this Agreement and the performance by the
Corporation of the actions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Corporation. This Agreement is a
legal, valid and legally binding obligation of the Corporation enforceable in
accordance with its terms. Neither the execution or delivery of this Agreement
nor the consummation by the Corporation of the actions contemplated hereby (i)
will violate any provision of the certificate of incorporation or by-laws (or
other charter documents) of the Corporation, (ii) will violate or be in conflict
with any applicable law or any judgment, decree, injunction or order of any
court or governmental agency or authority, or (iii) will violate or conflict
with or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under or will result in the termination of,
accelerate the performance
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required by, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the assets or properties of the Corporation under, any
term or provision of the certificate of incorporation or by-laws (or other
charter documents) of the Corporation or of any contract, commitment,
understanding, arrangement, agreement or restriction of any kind or character to
which the Corporation is a party or by which the Corporation or any of its
properties or assets may be bound or affected.
(B) No amount or benefit shall be payable under this Agreement unless
there shall have occurred a Payment Trigger during the term of this Agreement.
In no event shall payments in accordance with this Agreement be made in respect
of more than one Payment Trigger.
(C) This Agreement shall not be constructed as creating an express or
implied contract of employment and, except as otherwise agreed in writing
between the Executive and the Corporation, the Executive shall not have any
right to be retained in the employ of the Corporation or of a Subsidiary.
Notwithstanding the immediately preceding sentence or any other provision of
this Agreement, no purported termination of the Executive's employment that is
not effected in accordance with a Notice of Termination satisfying paragraph (A)
of Section 6 shall be effective for purposes of this Agreement. The Executive's
right, following the occurrence of a Change in Control, to terminate his
employment under this Agreement for Good Reason shall not be affected by the
Executive's Disability or incapacity. 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 under this Agreement.
4. Payments Due Upon a Payment Trigger.
(A) The Corporation shall pay to the Executive the payments described
in this Section 4 upon the occurrence of a Payment Trigger during the term of
this Agreement.
(B) Upon the occurrence of a Payment Trigger during the term of this
Agreement, the Corporation shall pay to the Executive a lump sum payment, in
cash, equal to the product of:
(i) one multiplied by
(ii) the sum of --
(a) the higher of the Executive's (1) annual
base salary in effect immediately prior to the
occurrence of the Change in Control or (2) the
Executive's annual base salary in effect immediately
prior to the Payment Trigger, plus
(b) the higher of (1) the Executive's target
annual bonus for the fiscal year (or other measuring
period) prior to the fiscal year (or other measuring
period) in which the Change in Control occurs or (2)
the Executive's target annual bonus for the fiscal
year (or other measuring period) in which the Payment
Trigger occurs.
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The amount determined under the foregoing provisions of this paragraph
(B) shall be reduced by any cash severance benefit otherwise paid to the
Executive under any applicable severance plan or other severance arrangement.
For purposes of this paragraph (B), amounts payable to the Executive pursuant to
an annual bonus plan for the fiscal year or other measuring period described in
(1) or (2) above, as applicable (the "applicable year/period"), shall not
include amounts attributable to a fiscal year or other measuring period that
commenced prior to the applicable year/period and that become payable during the
applicable year/period.
(C) Notwithstanding any provision of any incentive compensation plan,
including, without limitation, any provision of any incentive compensation plan
conditioning the receipt of any payment upon continued employment after the
completed fiscal year or other measuring period, the Corporation shall pay to
the Executive a lump sum amount, in cash, equal to the amount of any incentive
compensation that has been allocated or awarded to the Executive for a completed
fiscal year or other measuring period, preceding the occurrence of a Payment
Trigger under any incentive compensation plan but has not yet been paid to the
Executive.
(D) For the fiscal year or other measuring period during which the
Payment Trigger occurs, the Executive shall be entitled to a pro rata bonus
equal to the number of calendar days elapsed during the fiscal year or other
measuring period prior to the Date of Termination divided by the total days in
the fiscal year or measuring period, as the case may be, and multiplied by the
target bonus payable for such period.
(E) The payments provided for in paragraphs (B), (C) and (D) of this
Section 4 shall be made not later than the fifth day following the occurrence of
a Payment Trigger, unless the amounts of such payments cannot be finally
determined on or before that day, in which case, the Corporation shall pay to
the Executive on that day an estimate, as reasonably determined in good faith by
the Corporation, of the minimum amount of the payments to which the Executive is
clearly entitled and shall pay the remainder of the 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
day after the occurrence of a Payment Trigger. In the event the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
the excess shall constitute a loan by the Corporation to the Executive, payable
on the fifth business day after demand by the Corporation (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 4, the Corporation shall provide the
Executive with a written statement setting forth the manner in which the
payments were calculated and the basis for the calculations including, without
limitation, any opinions or other advice the Corporation has received from any
outside counsel, auditors or consultants (and any opinions or advice that are in
writing shall be attached to the statement).
(F) (i) In addition to the payments provided for above in this Section
4, the Corporation shall provide or arrange to provide, at the same cost to the
Executive, and at the same coverage level as in effect as of the Date of
Termination (subject to changes in coverage levels applicable to all employees
who are similarly situated to the Executive prior to the Date of Termination), a
continuation of the Executive's (and the Executive's eligible dependents')
health and life insurance coverages for twelve (12) months from the Date of
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Termination. The applicable COBRA health insurance benefit continuation period
shall commence at the beginning of this twelve (12) month benefit continuation
period.
(ii) The providing of these health and life insurance benefits
by the Corporation shall be discontinued prior to the end of the twelve (12)
month continuation period to the extent that the Executive becomes covered under
the health and/or life insurance coverages of a subsequent employer; provided
that such subsequent employer health insurance coverage does not contain any
exclusion or limitation with respect to any preexisting condition of the
Executive or the Executive's eligible dependents. For purposes of enforcing this
offset provision, the Executive shall have a duty to promptly inform the
Corporation in writing if the Executive becomes covered under the health and/or
life insurance coverages of a subsequent employer.
5. Gross-Up Payments.
(A) In the event it shall be determined that any payment or
distribution by the Corporation or other amount with respect to the Corporation
to or for the benefit of the Executive, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
5 (a "Payment'), is (or will be) subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are (or will be) incurred by the
Executive with respect to the excise tax imposed by Section 4999 of the Code
with respect to the Corporation (the excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), the
Executive shall be entitled to receive an additional cash payment (a "Gross-Up
Payment") from the Corporation in an amount equal to the sum of the Excise Tax
and an amount sufficient to pay the cumulative Excise Tax and all cumulative
income taxes (including any interest and penalties imposed with respect to such
taxes) relating to the Gross-Up Payment so that the net amount retained by the
Executive is equal to all payments to which Executive is entitled pursuant to
the terms of this Agreement (excluding the Gross-Up Payment) or otherwise less
income taxes (but not reduced by the Excise Tax or by income taxes attributable
to the Gross-Up Payment).
(B) Subject to the provisions of paragraph (C) of this Section
5, all determinations required to be made under this Section 5, including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at the determination,
shall be made by a nationally recognized certified public accounting firm
selected by the Corporation with the consent of the Executive, which should not
unreasonably be withheld (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Corporation and the Executive within 30 days
after the receipt of notice from the Executive that there has been a Payment, or
such earlier time as is requested by the Corporation. All fees and expenses of
the Accounting Firm shall be borne solely by the Corporation. The Corporation,
as determined in accordance with this Section 5, shall pay any Gross-Up Payment
to the Executive within five days after the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall so indicate to the Executive in writing. Any
determination by the Accounting Firm shall
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be binding upon the Corporation and the Executive. As a result of uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm, it is possible that Gross-Up Payments that
the Corporation should have made will not have been made (an "Underpayment"),
consistent with the calculations required to be made hereunder. In the event the
Corporation exhausts its remedies in accordance with paragraph (C) of this
Section 5 and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of Underpayment that
has occurred and the Underpayment shall be promptly paid by the Corporation to
or for the benefit of the Executive.
(C) The Executive shall notify the Corporation in writing of
any claim by the Internal Revenue Service that, if successful, would require a
Gross-Up Payment (that has not already been paid by the Corporation). The
notification shall be given as soon as practicable but no later than ten
business days after the Executive is informed in writing of the claim and shall
apprise the Corporation of the nature of the claim and the date on which the
claim is requested to be paid. The Executive shall not pay the claim prior to
the expiration of the 30-day period following the date on which the Executive
gives notice to the Corporation or any shorter period ending on the date that
any payment of taxes with respect to the claim is due. If the Corporation
notifies the Executive in writing prior to the expiration of the 30-day period
that it desires to contest the claim, the Executive shall:
(i) give the Corporation any information reasonably
requested by the Corporation relating to the claim;
(ii) take any action in connection with contesting
the claim as the Corporation shall reasonably request in
writing from time to time, including, without limitation,
accepting legal representation with respect to the claim by an
attorney reasonably selected by the Corporation;
(iii) cooperate with the Corporation in good faith in
order effectively to contest the claim; and
(iv) permit the Corporation to participate in any
proceedings relating to the claim.
The Corporation shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with the contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of the representation and
payment of costs and expenses. Without limitation of the forgoing provisions of
this Section 5, the Corporation shall control all proceedings taken in
connection with the contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings, and conferences with the
taxing authority in respect of the claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute the
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Corporation
shall determine. If the Corporation directs the Executive to pay the claim and
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xxx for a refund, the Corporation shall advance the amount of the payment to the
Executive, on an interest-free basis, and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to the advance
or with respect to any imputed income with respect to the advance; and any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which the contested amount is
claimed to be due shall be limited solely to the contested amount. The
Corporation's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(D) If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to paragraph (C) of this Section 5, the
Executive becomes entitled to receive any refund with respect to the claim, the
Executive shall, subject to the Corporation's compliance with the requirements
of paragraph (C) of this Section 5, promptly pay to the Corporation the amount
of the refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to paragraph (C) of this Section 5, a
determination is made that the Executive shall not be entitled to any refund
with respect to the claim and the Corporation does not notify the Executive in
writing of its intent to contest the denial of refund prior to the expiration of
30 days after the determination, then the advance shall be forgiven and shall
not be required to be repaid and the amount of the advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
6. Termination Procedures.
(A) 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 written notice that indicates
the specific termination provision in this Agreement relied upon, and, if
applicable, the notice 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 shall include a copy of a resolution duly adopted by the affirmative
vote of not less than a majority of the entire membership of the Board at a
meeting of the Board finding that, in the informed, reasonable, good faith
judgment of the Board, the Executive was guilty of conduct set forth in the
definition of Cause in Section 1(B), and specifying the particulars thereof in
detail.
(B) "Date of Termination" with respect to any purported
termination of the Executive's employment during the term of the Agreement
(other than by reason of death) shall mean (i) if the Executive's employment is
terminated for Disability, 20 business 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 that 20 business 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 Corporation, shall not be less than ten
9
business 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 ten business days nor
more than 20 business days, respectively, after the date such notice of
Termination is given.
7. No Mitigation. The Executive shall not be required to seek
other employment or to attempt in any way to reduce any amounts payable to the
Executive by the Corporation pursuant to this Agreement. Further, except as
provided in Section 4(E), the amount of any payment or benefit provided for in
this Agreement 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 Corporation
or a Subsidiary or parent company, or otherwise.
8. Disputes.
(A) If a dispute or controversy arises out of or in
connection with this Agreement, the parties shall first attempt in good faith to
settle the dispute or controversy by mediation under the Commercial Mediation
Rules of the American Arbitration Association before resorting to arbitration or
litigation. Thereafter, any remaining unresolved dispute or controversy arising
out of or in connection with this Agreement shall, upon a written notice from
the Executive to the Corporation either before suit thereupon is filed or within
20 business days thereafter, be settled exclusively by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association in
a city located within the continental United States designated by the Executive.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Executive shall, however, be entitled to seek specific
performance of the Corporation's obligations hereunder during the pendency of
any dispute or controversy arising under or in connection with this Agreement.
(B) Any legal action concerning this Agreement, other than a
mediation or an arbitration described in paragraph (A) of this Section 8,
whether instituted by the Corporation or the Executive, shall be brought and
resolved only in a state court of competent jurisdiction located in the
territory that encompasses the city, county, or parish in which the Executive's
principal residence is located at the time such action is commenced. The
Corporation hereby irrevocably consents and submits to and shall take any action
necessary to subject itself to the personal jurisdiction of that court and
hereby irrevocably agrees that all claims in respect of the action shall be
instituted, heard, and determined in that court. The Corporation agrees that
such court is a convenient forum, and hereby irrevocably agrees that all claims
in respect of the action shall be instituted, heard, and determined in that
court, and hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of the action.
Any final judgment in the action may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law.
(C) The Corporation shall pay all costs and expenses,
including attorneys' fees and disbursements, of the Corporation and, at least
monthly, the Executive in connection with any legal proceeding (including
arbitration), whether or not instituted by the Corporation or the Executive,
relating to the interpretation or enforcement of any provision of this
Agreement, provided that if the Executive instituted the proceeding and the
judge, arbitrator, or other
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individual presiding over the proceeding affirmatively finds that the Executive
instituted the proceeding in bad faith, the Executive shall pay all costs and
expenses, including attorneys' fees and disbursements, of Executive and the
Corporation. The Corporation shall pay prejudgment interest on any money
judgment obtained by Executive as a result of such proceeding, calculated at the
rate provided in Section 1274(b)(2)(B) of the Code.
9. Successors: Binding Agreement.
(A) In addition to any obligations imposed by law upon any
successor to the Corporation, the Corporation shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business or assets of the Corporation
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform it if no
such succession had taken place. Failure of the Corporation to obtain the
assumption and agreement prior to the effectiveness of any succession shall be a
breach of this Agreement and shall entitle the Executive to compensation from
the Corporation in the same amount and on the same terms as the Executive would
be entitled to hereunder if the Executive were to terminate his employment for
Good Reason immediately after a Change in Control and during the term of this
Agreement, except that, for purposes of implementing the foregoing, the date on
which any succession becomes effective shall be deemed the Payment Trigger
occasioned by the foregoing deemed termination of employment for Good Reason
immediately following a Change in Control. The provisions of this Section 9
shall continue to apply to each subsequent employer of Executive bound by this
Agreement in the event of any merger, consolidation, or transfer of all or
substantially all of the business or assets of that subsequent employer.
(B) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executor,
administrators, successors, heirs, distributees, devisees, and legatees. If the
Executive shall die while any amount would 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, the amount, 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 the 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
respective addressed 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 Corporation:
IPC Information Systems Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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Copy to:
IPC Information Systems, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
To the Executive:
To the most recent address of Executive set forth in
the personnel records of the Corporation.
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 an officer of the Corporation
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 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 New York. All references
to sections of the Securities Exchange Act of 1934 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.
12. Validity. The invalidity or unenforceability of 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.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date set
forth above.
Attest: IPC INFORMATION SYSTEMS INC.
By:
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Name: Name:
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Title: Title:
Witness: EXECUTIVE:
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Print Name:
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