EXHIBIT 99
EMPLOYMENT PROTECTION AGREEMENT
THIS AGREEMENT between The Genlyte Group Incorporated, a Delaware
corporation (the "Corporation"), and _________________("the Executive"), dated
as of the______ day of _________________.
WITNESSETH:
The Board of Directors of the Corporation (the "Board") has determined
that it is in the best interests of the Corporation and its shareholders to
assure that the Corporation will have the continued dedication of the Executive,
notwithstanding the possibility, threat, or occurrence of a Change of Control
(as defined below) of the Corporation. The Board believes it is imperative to
diminish the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control, to
encourage the Executive's full attention and dedication to the Corporation
currently and in the event of any compensation arrangements upon a Change of
Control which provide the Executive with individual financial security and which
are competitive with those of other corporations and, in order to accomplish
these objectives, the Board has authorized the Corporation to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed by and between the Corporation and the
Executive as follows:
1. OPERATION OF AGREEMENT. (a) EFFECTIVE DATE. The effective date
of this Agreement shall be the date on which a Change of Control occurs (the
"Effective Date"), provided that if the Executive is not employed by the
Corporation (or by an entity which is majority-owned by the Corporation,
including any corporation, partnership, joint venture or limited liability
company, herein referred to as "a subsidiary," employment by any being deemed
employment by the Corporation for purposes of this Agreement) on the Effective
Date, this Agreement shall be void and without effect.
(b) TERM. This Agreement shall expire on December 31, 1999,
provided that this Agreement shall automatically be extended for an additional
one year period on the first of day of each calendar year commencing after 1999
unless the Corporation or the Executive shall have given the other party at
least 60 days' prior written notice that it or he does not want the term to be
so extended. Notwithstanding the foregoing, this Agreement shall not expire
earlier than the second anniversary of a Change of Control which occurs before
this Agreement shall have otherwise expired.
2. CHANGE OF CONTROL. For the purpose of this Agreement, a "Change
of Control" shall be deemed to have occurred if: (i) any person (as defined in
Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to
time (the "Exchange Act"), and as used in Sections 13(d) and 14(d) thereof),
excluding the Corporation, any majority owned subsidiary of the Corporation (a
"Subsidiary") and any employee benefit plan sponsored or maintained by the
Corporation or any Subsidiary (including any trustee of such plan acting as
trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange
Act (a "Person"), becomes the beneficial owner of shares of the Corporation
having at least 34% of the total number of votes that may be cast for the
election of directors of the Corporation (the "Voting Shares"); (ii) the Board
or the shareholders of the Corporation shall approve any merger or other
business combination of the Corporation, sale of the Corporation's assets or
combination of the foregoing transactions (a "Transaction") other than a
Transaction involving only the Corporation and one or more of its Subsidiaries,
or a Transaction immediately following which the shareholders of the Corporation
immediately prior to the Transaction continue to have a majority of the voting
power in the resulting entity, excluding for this purpose any shareholder owning
directly or indirectly more than 10% of the shares of the other company involved
in the merger; (iii) the Board recommends that the shareholders of the
Corporation tender or exchange their Voting Shares pursuant to a tender or
exchange offer made by a Person; or (iv) within any 24-month period beginning on
or after March 31, 1990, the persons who were directors of the Corporation
immediately before the beginning of such period (the Incumbent Directors") shall
cease (for any reason other than death) to constitute at least a majority of the
Board or the Board of Directors of any successor to the Corporation, provided
that any director who was not a director as of April 1, 1990 shall be deemed to
be an Incumbent Director if such director was elected to the Board by, or on the
recommendation of or with the approval of, at least two-thirds of the directors
who then qualified as Incumbent Directors either actually or by prior his
capacity as the Executive or as a director of the Corporation or a Subsidiary,
where applicable in actions or events which give rise to a Change of Control, no
Change of Control shall be deemed to have occurred for purposes of this
agreement, provided that nothing in this sentence shall be construed to prohibit
the Executive from participating in any compensation program which is reasonable
in light of competitive practices.
3. EMPLOYMENT PERIOD. Subject to Section 6 of this Agreement, if
the Executive is employed on the Effective Date, the Corporation agrees to
continue the Executive in its employ, and the Executive agrees to remain in the
employ of the Corporation (or a majority-owned subsidiary of the Corporation),
for the period (the "Employment Period") commencing on the Effective Date and
ending on the second
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anniversary of the Effective Date. Notwithstanding the foregoing, if, prior to a
Change of Control, the Executive is demoted to a lower position than the
position held on the date first set forth above, the Board may declare that this
Agreement shall be without force and effect by written notice delivered to
Executive within 30 days following such demotion and prior to the occurrence of
a Change of Control.
4. DUTIES AND RESPONSIBILITIES. (a) NO REDUCTION IN POSITION.
During the Employment Period, the Executive's duties and responsibilities shall
be at least commensurate with those held, exercised and assigned immediately
prior to the Effective Date, and the Executive's services shall be performed at
the location where the Executive was employed immediately preceding the
Effective Date. It is understood that, for purposes of this Agreement, such
duties and responsibilities shall not be regarded as not commensurate merely by
virtue of the fact that a successor shall have acquired all or substantially all
of the business and/or assets of the Corporation as contemplated by Section
13(b) of this Agreement, provided that the Executive shall continue to have
duties and responsibilities with respect to such successor or affiliated company
commensurate with those of the Executive with respect to the Corporation prior
to such acquisition. As used in this Agreement, the term "affiliated company"
means any company controlling, controlled by, or under common control with the
Corporation.
(b) BUSINESS TIME. From and after the Effective Date, the Executive
agrees to devote his full business time during normal business hours to the
business and affairs of the Corporation (or a majority-owned subsidiary of the
Corporation) and to use his best efforts to perform faithfully and efficiently
the responsibilities assigned to him hereunder, to the extent necessary to
discharge such responsibilities, except for
(i) time spent in managing his personal, financial and legal
affairs and serving on corporate, civic or charitable boards or
committees, in each case only if and to the extent permitted
prior to the Effective Date and not substantially interfering
with the performance of such responsibilities, and
(ii) periods of vacation and sick leave to which he is entitled.
It is expressly understood and agreed that the Executive's continuing to serve
on any boards and committees on which he is serving or with which he is
otherwise associated immediately preceding the Effective Date shall not be
deemed to interfere with the performance of the Executive's services to the
Corporation (or a majority-owned subsidiary of the Corporation)
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unless the Corporation shall have objected in writing to such service prior to
the Effective Date.
5. COMPENSATION. (a) BASE SALARY. During the Employment Period,
the Executive shall receive as base salary ("Base Salary") at a monthly rate at
least equal to the monthly salary paid to the Executive by the Corporation and
any of its affiliated companies immediately prior to the Effective Date. The
Base Salary shall be reviewed at least once each year after the Effective Date,
and may be increased (but not decreased) at any time and from time to time by
action of the Board or any committee thereof or any individual having authority
to take such action in accordance with the Corporation's regular practices.
Neither the Base Salary nor any increase in Base Salary after the Effective Date
shall serve to limit or reduce any other obligation of the Corporation
hereunder.
(b) MIC PROGRAM. In addition to the Base Salary, during each fiscal
year of the Corporation ending during the Employment period the Executive shall
be eligible to participate in the Organization Management Goals/ Management
Incentive Compensation Program (the "MIC Program") as in effect immediately
prior to the Effective Date. In no event shall the amount payable to the
Executive under the MIC Program be less than the average of the amounts paid to
the Executive under the MIC Program in respect to the three fiscal years of the
Corporation ending immediately prior to the Effective Date (the "Average MIC
Payment"). If a fiscal year of the Corporation begins, but does not end, during
the Employment Period, the Executive shall receive an amount with respect to
such fiscal year at least equal to the Average MIC Payment multiplied by a
fraction, the numerator of which is the number of days of such fiscal year
occurring during the Employment Period and the denominator of which is 365. Each
amount payable pursuant to this Section 4(b) shall be paid in January of the
year next following the year for which such amount is earned or awarded, unless
electively deferred by the Executive pursuant to any deferral programs or
arrangements that the Corporation may make available to the Executive.
(c) INCENTIVE, SAVINGS AND RETIREMENT PLANS. In addition to the
Base Salary and the participation in the MIC Program as hereinabove provided,
during the Employment Period, the Executive shall be entitled to participate in
all incentive and savings plans and programs, including stock option plans and
other equity based compensation plans, and in all retirement plans, on a basis
providing him with the opportunity to receive compensation [without duplication
of the amount payable under Section 4(b)] and benefits equal to the average of
those provided by the Corporation to the Executive during the three years
preceding the Effective Date under such plans and programs as in effect
immediately prior to the Effective Date.
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(d) BENEFIT PLANS. During the Employment Period, the Executive and
his eligible dependents, as the case may be, shall be entitled to participate in
or be covered under all medical, dental, disability, group life (including
optional life), accidental death (including family accident) and travel accident
insurance plans and programs of the Corporation as in effect immediately prior
to the Effective Date.
(e) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the policies and procedures of the Corporation
as in effect immediately prior to the Effective Date.
(f) VACATION AND FRINGE BENEFITS. During the Employment Period, the
Executive shall be entitled to paid vacation and fringe benefits (including,
without limitation, the use of a Company provided automobile) in accordance with
the policies of the Corporation as in effective immediately prior to the
Effective Date.
(g) OFFICE AND SUPPORT STAFF. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance, at
least equal to those provided to other key executives of the Corporation having
comparable responsibilities.
(h) COMPARABLE OPPORTUNITY. If any plan, program or arrangement
described in this Section 5 is modified or terminated, such plan, program or
arrangement or a replacement plan, program or arrangement must continue to
provide the Executive with substantially comparable benefits or opportunities,
as the case may be.
6. TERMINATION. (a) DEATH OR DISABILITY. Subject to the
provisions of Section 1 hereof, this Agreement shall terminate automatically
upon the Executive's death. The Corporation may terminate this Agreement, after
having established the Executive's Disability, by giving to the Executive
written notice of its intention to terminate his employment. For purposes of
this Agreement, "Disability" means disability which entitles the Executive to
receive long-term disability benefits under the Corporation's long-term
disability plan.
(b) VOLUNTARY TERMINATION. Notwithstanding anything in this
Agreement to the contrary, at any time more than 180 days after the Effective
Date the Executive may voluntarily terminate employment for any reason
(including early or normal retirement under the terms of the Corporation's
retirement plan as in effect from time to time); provided,
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however, that if the Executive has notified the Corporation of his intended
retirement date prior to the occurrence of a Change of Control and such date is
within such 180 day period, the Executive may retire on such date without
breaching this Agreement. To voluntarily terminate employment (other than
pursuant to the provision in the preceding sentence) the Executive must provide
30 days' written notice to the Corporation, which notice may be given prior to
the 180th day after the Effective Date. The Executive agrees that the
Corporation shall be entitled to receive, as liquidated damages for breach of
his obligation to remain employed for 180 days following a Change of Control [or
such shorter period permitted under this Section 6(b)], an amount equal to any
amounts paid to the Executive during the Employment Period under the MIC Program
or any other incentive plan described in Section 5(c). Nothing in this Section
6(b) shall be construed to treat any termination by Executive pursuant to
Section 6(d) on account of Good Reason (as defined therein) as a voluntary
termination under this Section 6(b).
(c) CAUSE. The Corporation may terminate the Executive's employment
for Cause. For purposes of this Agreement, "Cause" means (i) an act or acts of
dishonesty or gross misconduct on the Executive's part which result or are
intended to result in material damage to the Corporation's business or
reputation, (ii) repeated material violations by the Executive of his
obligations under Section 4 of this Agreement which violations are demonstrably
willful and deliberate on the Executive's part and which result in material
damage to the Corporation's business or reputation or (iii) conviction of a
felony.
(d) GOOD REASON. The Executive may terminate his employment for
Good Reason. For purposes of this Agreement, "Good Reasons" means
(i) without the express written consent of the Executive, the
assignment to the Executive of any duties which are not commensurate with
or better than the Executive's duties and responsibilities as contemplated
by Section 4 of this Agreement;
(ii) any failure by the Corporation to comply with any of the
provisions of Section 5 of this Agreement, other than an insubstantial or
inadvertent failure remedied by the Corporation promptly after receipt of
notice thereof given by the Executive; or
(iii) without the express written consent of the Executive, the
Corporation's requiring the Executive to be based at any office or location
more than 35 miles from that specified under the provisions of Section 4
except for travel reasonably required in the performance
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of the Executive's responsibilities or at any office or location which has
been selected primarily to harass or otherwise inconvenience the Executive.
(e) NOTICE OF TERMINATION. Any termination by the Company for Cause
or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 15(c).
For purposes of this Agreement, a "Notice of Termination" means a written notice
given, in the case of a termination for Cause, within 30 days of the
Corporation's having actual knowledge of the events giving rise to such
termination, and in the case of a termination for Good Reason, within 120 days
of the Executive' having actual knowledge of the events giving rise to such
termination, and which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (ii) if the termination date is
other than the date of receipt of such notice, specifies the termination date of
this Agreement (which date shall be not more than 15 days after the giving of
such notice). The failure by the Company or the Executive to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Cause or Good Reason shall not waive any right of the Company or the Executive
hereunder or preclude the Company or the Executive from asserting such fact or
circumstance in enforcing any rights hereunder.
(f) DATE OF TERMINATION. For the purpose of this Agreement, the
term "Date of Termination" means (i) in the case of a termination for which a
Notice of Termination is required, the date of receipt of such Notice of
Termination or, if later, the date specified therein, as the case may be, and
(ii) in all other cases, the actual date on which the Executive's employment
terminates during the Employment Period.
7. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated during the
Employment Period by reason of the Executive's death, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement other than those obligations accrued hereunder at the date
of his death, including, for this purpose (i) the Executive's full Base Salary
through the Date of Termination, (ii) any compensation previously deferred by
the Executive (together with any accrued earnings thereon) and not yet paid by
the Corporation and any accrued vacation pay not yet paid by the Corporation and
(iii) any other amounts or benefits owing to the Executive under the then
applicable employee benefit plans or policies of the Corporation (such amounts
specified in clauses (i), (ii) and (iii) are hereinafter referred to as "Accrued
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Obligations"). Unless otherwise directed by the Executive (or, in the case of
any employee benefit plan qualified (a "Qualified Plan") under Section 401(a) of
the Internal Revenue Code of 1986, as amended the ("Code"), as may be required
by such plan) all such Accrued Obligations shall be paid to the Executive in a
lump sum in cash within 30 days of the Date of Termination. Anything in this
Agreement to the contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to the level of benefits available
to surviving families of executives of the Corporation under such plans,
programs and policies relating to family death benefits, if any, in accordance
with the policies of the Corporation in effect immediately prior to the
Effective Date.
(b) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability, unless otherwise directed by the Executive
(or, in the case of any Qualified Plan, as may be required by such plan), the
Executive shall be paid all Accrued Obligations in a lump sum in cash within 30
days of the Date of Termination. Anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled to receive disability and other
benefits at least equal to the level of benefits available in accordance with
the plans, programs and policies maintained by the Corporation relating to
disability immediately prior to the Effective Date.
(c) CAUSE AND VOLUNTARY TERMINATION. If, during the Employment
Period, the Executive's employment shall be terminated for Cause or voluntarily
terminated by Executive (other than on account of Good Reason), the Corporation
shall pay the Executive the Accrued Obligations. Unless otherwise directed by
the Executive (or, in the case of any Qualified Plan, as may be required by such
plan), the Executive shall be paid all such Accrued Obligations in a lump sum in
cash within 45 days of the Date of Termination and the Corporation shall have no
further obligations to the Executive under this Agreement.
(d) TERMINATION BY CORPORATION OTHER THAN FOR CAUSE OR DISABILITY
AND TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
(i) LUMP SUM PAYMENTS. Subject to the provisions of Section 9
hereof, if during the Employment Period the Corporation terminates the
Executive's employment other than for Cause or Disability, or the Executive
terminates his employment for Good Reason, the Corporation shall pay to the
Executive in a lump sum in cash within 15 days after the Date of
Termination the aggregate of the following amounts:
(A) if not therefore paid, the Executive's Base Salary
through the Date of Termination;
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(B) a cash amount equal to two times the sum of
(1) The Executive's annual Base Salary at the rate
specified in Section 5(d)(i)(A); and
(2) The Average MIC Payment as defined in Section
5(b).
(C) a cash amount equal to the present value of the
incremental retirement benefits (including, without
limitation, any pension, retiree life or retiree
medical benefits) that would have been payable or
available to the Executive under any Qualified Plan,
or under any supplemental retirement, life or medical
plan or arrangement, whether or not qualified,
maintained by the Corporation or a Subsidiary based on
the age and service the Executive would have attained
or completed had the Executive continued in the
Corporation's employ until the expiration of the
Employment Period, determined using, where
compensation at the Date of Termination, with such
present value being calculated using the Discount Rate
(as defined below); provided, however, that in lieu of
any cash payment in respect of retirees life or
medical coverage for which the Executive would have
qualified by remaining in the Corporation's employ
until the expiration of the Employment Period, the
Corporation may arrange for such coverage to continue
for the Executive (or may secure equivalent conversion
coverage) and shall pay the cost of such coverage. For
purposes of this Agreement, the Discount Rate shall
mean the average of the rate payable on U.S. Treasury
notes having a term of one year and the rate payable
on high quality corporate bonds having a term of not
more than 10 years as reported on the Xxxxxxx Xxxxx
Xxxx indexes (or other comparable indexes);
(D) a cash amount equal to the present value (determined
using the Discount Rate) of any supplemental
retirement benefits with respect to
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which the Executive had not become vested prior to the
Date of Termination; and
(E) a cash amount equal to any amounts (other than amounts
payable to Executive under any Qualified Plans)
described in Sections 7(a)(ii) and (iii).
(ii) INTEREST. In the event that the Company fails to pay the
Executive the amount payable under Section 7(d)(i) when due, the Company
shall also pay the Executive interest on such amount for each calendar
quarter (or part thereof) during which a payment is overdue hereunder at a
rate equal to the prime rate in effect at The Chase Manhattan Bank, N.A. on
the first day of such calendar quarter, plus 3%. Any interest payable under
this Section 7(d)(ii) which is not paid on the last day of the calendar
quarter in which such interest accrues shall be added to the amount due
under Section 7(d)(i) and shall also be payable with interest calculated in
accordance with this Section 7(d)(ii).
(iii) BENEFITS. The Executive shall be entitled to continue for two
years to participate at the level at which the Executive was participating
at the Date of Termination in the Corporation's health, accident,
disability and life insurance plans in effect immediately prior to the
Effective Date (the "Additional Benefits") or, to the extent that Employee
is no longer eligible to participate in any plan that provides such
Additional Benefits, to receive benefits of equal value to the Additional
Benefits to which he would otherwise be entitled, PROVIDED, HOWEVER, that
any payments to which Employee would otherwise be entitled under this
Section 7(d)(iii) shall be reduced by an amount equal to the value of any
comparable benefits provided Employee by a subsequent employer;
(iv) PAYMENTS WITH RESPECT TO STOCK OPTIONS HELD BY EXECUTIVES. Upon
the earlier to occur of (A) the merger of the Corporation with or into
another corporation following a Change of Control, or (B) the date which is
six months after the Date of Termination, Executive shall be paid an amount
equal to the sum of (i) the product of (a) the excess of (x) the highest
price offered for a share of common stock of the Corporation in conjunction
with any tender offer or during the 60 day period immediately preceding the
Effective Date, if the Change of Control occurs other than pursuant to a
tender offer, over (v) the exercise price of any stock option held by the
Executive at the Effective Date times (b) the number of shares of common
stock of the Corporation subject to such options. Notwithstanding the
foregoing, if the Executive otherwise receives the
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value of any such stock option under the general provisions of any such
award or any generally applicable provisions of any plan under which
options are issued, the number of shares of common stock taken into account
in determining the amount payable under this Section 7(d)(iv) shall be
appropriately reduced.
(v) DISCHARGE OF CORPORATION'S OBLIGATIONS. Subject to the
performance of its obligations under this Section 7(d), the Corporation
shall have no further obligations to the Executive in respect of any
termination by the Executive for Good Reason or by the Corporation other
than for Cause or Disability, except to the extent expressly provided under
any of the plans referred to in Section 5(c) or 5(d) or as otherwise
provided under Section 8.
8. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Corporation
or any of its affiliated companies and for which the Executive may qualify, nor
shall anything herein limit or otherwise prejudice such rights as the Executive
may have under any other agreements with the Corporation or any of its
affiliated companies, including employment agreements or stock option
agreements. Amount which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Corporation or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan or program.
9. CERTAIN REDUCTION OF PAYMENTS BY THE CORPORATION. (a) For
purposes of this section, (i) a Payment shall mean any payment or distribution
in the nature of compensation to or for the benefit of the Executive, whether
paid or payable pursuant to this Agreement or otherwise; (ii) Agreement Payment
shall mean a Payment paid or payable pursuant to this Agreement (disregarding
this Section 9); (iii) Net After Tax Receipt shall mean the Present Value of a
Payment net of all taxes imposed on the Executive with respect thereto under
Section 1 and 4999 of the Code, determined by applying the highest marginal rate
under Section 1 of the Code which applied to the Executive's taxable income for
the current taxable year; (iv) "Present Value" shall mean such value determined
in accordance with Section 280G(d)(4) of the Code; and (v) "Reduced Amount"
shall mean the smallest aggregate amount of Payments which (a) is less than the
sum of all Payments and (b) results in aggregate Net After Taxes Receipts which
would result if the aggregate Payments were any other amount less than the sum
of all Payments.
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(b) Anything in this Agreement to the contrary notwithstanding, in
the event the Corporation's independent public accounting firm immediately prior
to the Change of Control (the "Accounting Firm") shall determine that receipt of
all Payments would subject the Executive to tax under Section 4999 of the Code,
it shall determine whether some amount of Payments would meet the definition of
a "Reduced Amount". If the Accounting Firm determines that there is a Reduced
Amount, the aggregate Agreement Payments shall be reduced to such Reduced
Amount; provided, however, that if the Reduced Amount exceeds the aggregate
Agreement Payments, the aggregate Payments shall, after the reduction of all
Agreement Payments, be reduced (but not below zero) in the amount of such
excess.
(c) If the Accounting Firm determines that aggregate Agreement
Payments or Payments, as the case may be, should be reduced to the Reduced
Amount, the Corporation shall promptly give the Executive notice to that effect
and a copy of the detailed calculation thereof, and the Executive may then
elect, in his sole discretion, which and how much of the Payments shall be
eliminated or reduced (as long as after such election the present value of he
aggregate Payments equals the Reduced Amount), and shall advise the Corporation
in writing of his election within 10 days of his receipt of notice. If no such
election is made by the Executive within such 10 day period, the Corporation may
elect which of the Agreement Payments or Payments, as the case may be, shall be
eliminated or reduced (as long as after such election the present value of the
aggregate Agreement Payments or Payments, as the case may be, equals the Reduced
Amount) and shall notify the Employee promptly of such election. All
determinations made by the Accounting Firm under this Section shall be binding
upon the Corporation and the Executive and shall be made within 60 days of a
termination of employment of the Executive. As promptly as practicable following
such determination, the Corporation shall pay to or distribute for the benefit
of the Executive such Payments as are then due to the Executive under this
Agreement and shall promptly pay to or distribute for the benefit of the
Executive in the future such Payments as become due to the Executive under this
Agreement.
(d) While it is the intention of the Corporation and the Executive
to reduce the amounts payable or distributable to the Executive hereunder only
if the aggregate Net After Tax Receipts to the Executive would thereby be
increased, as a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that amounts will have been paid or distributed by the
Corporation to or for the benefit of the Executive pursuant to this Agreement
which should not have been so paid or distributed ("Overpayment") or that
additional amounts which will not have been paid or
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distributed by the Corporation to or for the benefit of the Executive pursuant
to this Agreement should have been so paid or distributed ("Underpayment"), in
each case, consistent with the calculation of the Reduced Amount hereunder. In
the event that the Accounting Firm, based either upon the assertion of a
deficiency by the Internal Revenue Service against the Corporation or the
Executive which the Accounting Firm believes has a high probability of success
or controlling precedent or other substantial authority, determines that an
Overpayment has been made, any such Overpayment paid or distributed by the
Corporation to or for the benefit of the Executive shall be treated for all
purposes as a loan AB INITIO to the Executive which the Executive shall repay to
the Corporation together with interest at the applicable federal rate provided
for in Section 7872(f)(2) of the Code; provided, however, that no such loan
shall be deemed to have been made and no amount shall be payable to the
Executive to the Corporation if and to the extent such deemed loan and payment
would not either reduce the amount on which the Executive is subject to tax
under Section 1 and Section 4999 of the Code or generate a refund of such taxes.
In the event that the Accounting Firm, based upon controlling precedent or other
substantial authority, determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Corporation to or for the benefit of
the Executive together with interest at the applicable federal rate provided for
in Section 7872(f)(2) of the Code.
10. FULL SETTLEMENT. The Corporation's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Corporation may have against the Executive or others whether by reason of
the subsequent employment of the Executive or otherwise. In no event shall the
Executive be obligated to seek other employment by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement.
In the event that the Executive shall in good faith give a Notice of Termination
for Good Reason and it shall thereafter be determined that Good Reason did not
exist, the employment of the Executive shall, unless the Corporation and the
Executive shall otherwise mutually agree, be deemed to have terminated, at the
date of giving such purported Notice of Termination, by mutual consent of the
Corporation and the Executive and, except as provided in the last preceding
sentence, the Executive shall be entitled to receive only those payments and
benefits which he would have been entitled to receive at such date otherwise
than under this Agreement.
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11. LEGAL FEES AND EXPENSES. In the event that a claim for payment
or benefits under this Agreement is disputed, the Corporation shall pay all
reasonable attorney fees and expenses incurred by the Executive in pursuing such
claim, provided that Executive is successful as to at least part of the disputed
claim by reason of litigation, arbitration or settlement.
12. CONFIDENTIAL INFORMATION. The Executive shall hold in a
fiduciary capacity for the benefit of the Corporation all secret or confidential
information, knowledge or data relating to the Corporation or any of its
affiliated companies, and their respective businesses, (i) obtained by the
Executive during his employment by the Corporation or any of its affiliated
companies and (ii) not otherwise known by the public (other than by reason of an
unauthorized act by the Executive). After termination of the Executive's
employment with the Corporation, the Executive shall not, without the prior
written consent of the Corporation, unless compelled pursuant to an order of a
court or other body having jurisdiction over such matters, communicate or
divulge any such information, knowledge or data to anyone other than the
Corporation and those designated by it. In no event shall an asserted violation
of the provisions of this Section 11 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this Agreement.
The Executive acknowledges that, if a court of competent jurisdiction shall
determine that the Executive shall have breached his obligation under this
Section 12, it would be an appropriate remedy for such court to cause the
Executive to remit to the Corporation any termination benefits paid to him under
Section 7 in excess of the Accrued Obligations.
13. DISPUTES. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the rules of the American Arbitration Association then in effect
in the State of New Jersey, and judgment upon such award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
arbitration shall be held in Secaucus, New Jersey (or such other location as
shall be mutually agreed upon between the parties). The cost of the arbitration
shall be borne among the parties to the arbitration as determined by the
arbitrator(s).
14. SUCCESSORS. (a) This Agreement is personal to the Executive
and, without the prior written consent of the Corporation, shall not be
assignable by the Executive otherwise than by will or by the laws of
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descent and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Corporation and its successors. Excluding Genlyte Xxxxxx Group LLC, the
Corporation shall require any successor to all or substantially all of the
business and/or assets of the Corporation, whether direct or indirect, by
purchase, merger, consolidation, acquisition of stock, or otherwise, by an
agreement in form and substance satisfactory to the Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent as the Corporation would be required to perform if no such succession had
taken place.
15. MISCELLANEOUS. (a) APPLICABLE LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
applied without reference to principles of conflict of laws.
(b) AMENDMENTS. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(c) NOTICES. All notices and other communications hereunder shall
be in writing and shall be given by hand-delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: at the address listed on the last page hereof
If to the Corporation: The Genlyte Group Incorporated
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(d) TAX WITHHOLDING. The Corporation may withhold from any amounts
payable under this agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
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(e) SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(f) GENDER. For purposes of this Agreement, where the context so
requires, the masculine shall mean the feminine.
(g) CAPTIONS. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and the
Corporation has caused this Agreement to be executed in its name on its behalf,
and its corporate seal to be hereunto affixed and attested by its Secretary, all
as of the day and year first above written.
ATTEST: GENLYTE GROUP INCORPORATED
----------------------------------- By:---------------------------
Secretary
(Seal) Title:------------------------
EXECUTIVE
------------------------------
Address:
------------------------------
------------------------------
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