EXHIBIT 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made, entered into and is
effective as of the effective date of the Plan of Reorganization for iPCS, Inc.
("Parent") (the "Effective Date"), by and between iPCS Wireless, Inc., a
Delaware corporation (the "Company"), Xxxxxxxx X. Xxxxxxxx ("Executive") and,
for the limited purposes specified herein, Parent.
WITNESSETH THAT:
WHEREAS, Executive currently provides services to the Company as an
employee as the Vice President and Controller of the Company ("Controller");
WHEREAS, the Company desires to continue the employment of Executive as an
employee and Executive desires to continue to be employed by the Company,
pursuant to the terms of this Agreement, all effective as of the Effective Date;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Company, Executive and,
for the limited purposes specified, the Parent, as follows:
1. EMPLOYMENT PERIOD. Subject to the terms and conditions of this
Agreement, the Company hereby agrees to employ Executive during the Employment
Period (as defined below) and Executive hereby agrees to remain in the employ of
the Company and to provide services during the Employment Period in accordance
with this Agreement. The "Initial Employment Period" shall be the period
beginning on the Effective Date and ending on the third anniversary thereof,
unless sooner terminated as provided herein. At the conclusion of the Initial
Employment Period, this Agreement shall automatically renew for additional one
year terms (each a "Renewal Employment Period" and together with the Initial
Employment Period, the "Employment Period") unless either party gives notice of
intent not to renew at least 90 days prior to the beginning of any Renewal
Employment Period.
2. CHANGE IN CONTROL. In the event of a Change in Control (as defined
below) of the Company or the Parent, the provisions of Exhibit A, which is
attached hereto and which forms part of this Agreement, shall apply. For
purposes of this Agreement, the term "Change in Control" shall be as defined in
the iPCS, Inc. 2004 Long-Term Stock Incentive Plan, as in effect as of the
Effective Date (modified as necessary, if applied to the Company, to substitute
the Company for the Parent in such definition).
3. DUTIES. Executive agrees that during the Employment Period from and
after the Effective Date, while Executive is employed by the Company, Executive
will devote Executive's full business time, energies and talents to serving as
the Controller of the Company and the Parent, at the direction of the Company's
President and Chief Executive Officer ("CEO") and/or Chief Financial Officer
("CFO"). Executive shall have such duties and responsibilities as may be
assigned to Executive from time to time by the CEO or CFO, shall perform all
duties assigned
1
to Executive faithfully and efficiently, subject to the direction of the CEO or
CFO and shall have such authorities and powers as are inherent to the
undertakings applicable to Executive's position and necessary to carry out the
responsibilities and duties required of Executive hereunder. Executive will
perform the duties required by this Agreement at the Company's principal place
of business unless the nature of such duties requires otherwise. Notwithstanding
the foregoing, during the Employment Period, Executive may devote reasonable
time to activities other than those required under this Agreement, including
activities of a charitable, educational, religious or similar nature (including
professional associations) to the extent such activities do not, in the
reasonable judgment of the CEO, inhibit, prohibit, interfere with or conflict
with Executive's duties under this Agreement or conflict in any material way
with the business of the Parent, the Company and their respective affiliates;
provided, however, that Executive shall not serve on the board of directors of
any business (other than the Parent or the Company, or their affiliates) or hold
any other position with any business without receiving the prior written consent
of the CEO, which consent, with respect to private company boards, may not be
unreasonably withheld.
4. COMPENSATION AND BENEFITS. Subject to the terms and conditions of this
Agreement, during the Employment Period, while Executive is employed by the
Company, the Company shall compensate Executive for Executive's services as
follows for periods following the Effective Date:
(a) Executive shall be compensated at an annual rate of $122,000 (the
"Annual Base Salary"), which shall be payable in accordance with the
normal payroll practices of the Company. Beginning on January 1, 2005
and on each anniversary of such date, Executive's rate of Annual Base
Salary shall be reviewed by the CEO and/or the Compensation Committee
of the Board (the "Compensation Committee"), and following such
review, the Annual Base Salary may be adjusted upward but in no event
will be decreased.
(b) Executive shall be entitled to receive performance based annual
incentive bonuses (each, the "Incentive Bonus") from the Company in
accordance with the Company's Executive Compensation Strategy and
Incentive Design Plan as in effect from time to time (the "Incentive
Bonus Plan"). The annual Incentive Bonus at the target level of
performance will be 40% of the Annual Base Salary for the year to
which the bonus relates (the "Target Incentive Bonus"), determined
without pro ration for fiscal year 2004. The annual Incentive Bonus
may range from 50% to 200% of the Target Incentive Bonus based the
level of the Company's and Executive's performance. In addition, the
Incentive Bonus is subject to further adjustment as described below.
Notwithstanding any other provision of this Section 4, the Target
Incentive Bonus for fiscal year 2004 shall be based on a full year
notwithstanding that the Effective Date occurs after the first day of
the fiscal year.
After discussions with Executive, the CEO and/or the Compensation
Committee shall establish annual incentive goals that provide
Executive with the opportunity
2
to earn an annual Incentive Bonus. Such goals will be delivered in
writing to Executive annually prior to the 60th day following the
beginning of the applicable performance period. Within 45 days after
the end of each performance period, the CEO and/or the Compensation
Committee shall review the goals for such year and develop
recommendations as to the amount of Incentive Bonus Executive is
eligible to receive based on the satisfaction of the applicable
criteria. The CEO's and/or the Compensation Committee's recommendation
may include recommendations to increase or decrease the Incentive
Bonus by up to an additional 20% based on individual performance. All
such recommendations will be submitted to the Board for review and
amendment (if necessary). Promptly after review by the Board,
Executive shall be notified of the outcome and, if applicable, any
Incentive Bonus that was awarded shall be paid. Notwithstanding the
Board's review of the Compensation Committee's recommendations, the
Compensation Committee shall have the final authority to determine any
Incentive Bonus actually payable to Executive hereunder, subject to
the terms and conditions of this Agreement and the Incentive Bonus
Plan.
(c) The Company shall issue to Executive an option to acquire up to 40,000
shares of the Parent's common stock, all of which shall be effective
as of the Effective Date, under the terms of the Parent's long-term
incentive plan which shall be established effective as of the
Effective Date (the "Incentive Plan"). The per-share exercise price of
the options shall be $10.27 per share and such options shall be vested
as of any date with respect to 6.25% of the covered shares, multiplied
by the sum of one plus the number of the Company's full fiscal
quarters that have lapsed since the option grant date as of such date.
Any determinations of future grants under the Incentive Plan shall be
made in the sole discretion of the Compensation Committee and nothing
in this Agreement shall be construed so as to entitle Executive to any
such awards.
(d) Except as otherwise specifically provided to the contrary in this
Agreement, Executive shall be provided with pension and welfare fringe
benefits to the same extent and on the same terms as those benefits
are provided by the Company from time to time to the Company's other
senior management employees and Executive shall be entitled to no less
than four weeks' vacation for each calendar year, no more than two
weeks of which may be taken together, without the prior consent of the
CEO or CFO.
(e) Executive shall be reimbursed by the Company, on terms and conditions
that are substantially similar to those that apply to other similarly
situated senior management employees of the Company, for reasonable
out-of-pocket expenses for entertainment, travel, meals, lodging and
similar items which are consistent with the Company's expense
reimbursement policy and actually incurred by Executive in the
promotion of the Company's business.
3
(f) Executive shall be entitled, if applicable, to the "Gross-Up Payment"
as described in Exhibit B, which is attached hereto and which forms a
part of this Agreement.
5. RIGHTS AND PAYMENTS UPON TERMINATION. Executive's right to benefits
and payments, if any, for periods after the date on which Executive's employment
with the Company and its affiliates terminates for any reason (the "Termination
Date") shall be determined in accordance with this Section 5:
(a) MINIMUM PAYMENTS. If Executive's Termination Date occurs during the
Employment Period for any reason, Executive shall be entitled to the
following payments, in addition to any payments or benefits to which
Executive may be entitled under the following provisions of this
Section 5 (other than this paragraph 5(a)) or the express terms of any
employee benefit plan or as required by law:
(i) Executive's earned but unpaid Annual Base Salary for the
period ending on Executive's Termination Date;
(ii) Executive's earned but unpaid Incentive Bonus for the prior
fiscal year;
(iii) Executive's accrued but unpaid vacation pay for the period
ending with Executive's Termination Date, as determined in
accordance with the Company's policy as in effect from time to
time; and
(iv) Executive's unreimbursed business expenses and all other items
earned and owed to Executive through and including the
Termination Date; and
(v) the Gross-Up Payment, if applicable, to the extent provided by
Exhibit B.
Payments to be made to Executive pursuant to this paragraph 5(a) shall
be made within 30 days after Executive's Termination Date. Except as
may be otherwise expressly provided to the contrary in this Agreement
or as otherwise provided by law, nothing in this Agreement shall be
construed as requiring Executive to be treated as employed by the
Company following Executive's Termination Date for purposes of any
employee benefit plan or arrangement in which Executive may
participate at such time.
(b) TERMINATION BY COMPANY FOR CAUSE. If Executive's Termination Date
occurs during the Employment Period and is a result of the Company's
termination of Executive's employment on account of Cause (as defined
in paragraph 5(f) below), then, except as described in paragraph 5(a)
or as agreed in writing between Executive and the Company, Executive
shall have no right to payments or benefits under this Agreement (and
the Company shall have no obligation to make any such payments or
provide any such benefits) for periods after Executive's Termination
Date.
4
(c) TERMINATION FOR DEATH OR DISABILITY. If Executive's Termination Date
occurs during the Employment Period and is a result of Executive's
death or Disability, then, except as described in paragraph 5(a) or as
agreed in writing between Executive and the Company, Executive (or in
the event of Executive's death, Executive's estate) shall be entitled
to the following:
(i) continuing payments of Executive's Annual Base Salary (payable
in accordance with paragraph 4(a)) for the Continuation Period
(as defined below);
(ii) continuation of health benefits for Executive and Executive's
"qualified beneficiaries," as defined in Section 4980B of the
Internal Revenue Code of 1986, as amended ("COBRA") for the
Continuation Period at a cost which is no greater than is
charged to active employees of the Company and their
dependents, which continuing health benefits shall be provided
only if Executive and Executive's and her qualified
beneficiaries, as applicable, make a timely and proper
election to be covered under COBRA;
(iii) immediate vesting of any and all stock options, shares of
restricted stock, restricted stock units and other unvested
incentive awards then held by Executive; and
(iv) a lump sum payment equal to the Target Incentive Bonus for the
year in which the Termination Date occurs, prorated (on a
daily basis) through Executive's Termination Date.
For purposes of this Agreement, the "Continuation Period" shall be the
period commencing on Executive's Termination Date and ending on the
earlier of (A) the first anniversary of Executive's Termination Date,
or (B) if applicable, the date on which Executive violates the
provisions of Sections 6 or 7 of this Agreement. All lump sum payments
required under this paragraph 5(c) shall be made no later than 15 days
after the Termination Date.
(d) CERTAIN TERMINATIONS BY THE COMPANY OR EXECUTIVE. If Executive's
Termination Date occurs during the Employment Period and is a result
of Executive's termination of employment (i) by the Company for any
reason other than Cause (and is not on account of Executive's death,
Disability, or voluntary resignation, the mutual agreement of the
parties or pursuant to paragraph 5(e)), (ii) by Executive following
the Company's breach of this Agreement in any material respect and
failure to cure the breach within 30 days after notice thereof from
Executive, or (iii) by Executive within 60 days after Executive's
principal place of employment with the Company is relocated outside of
the greater Chicago metropolitan area, then, except as described in
paragraph 5(a) or as agreed in
5
writing between Executive and the Company, Executive shall be entitled
to the following payments and benefits:
(i) continuing payments of Executive's Annual Base Salary (payable
in accordance with paragraph 4(a)) for the Continuation
Period;
(ii) continuation of health benefits for Executive and Executive's
qualified beneficiaries for the Continuation Period at a cost
which is no greater than is charged to active employees of the
Company and their dependents, which continuing health benefits
shall be provided only if Executive and Executive's qualified
beneficiaries, as applicable, make a timely and proper
election to be covered under COBRA;
(iii) a lump sum payment equal to the Target Incentive Bonus for the
year in which the Termination Date occurs; and
(iv) the additional vesting, as of the Termination Date, of any and
all stock options, shares of restricted stock, restricted
stock units and other unvested incentive awards then held by
Executive as if the Executive had completed one additional
year of service as of the Termination Date.
All lump sum payments required under this paragraph 5(d) shall be made
within 15 days after the Termination Date. Notice by the Company that
the term of this Agreement will not be renewed, and any subsequent
termination of Executive's employment at the end of the Employment
Period, will not result in Executive being eligible for any payments
or benefits contemplated by this paragraph 5(d). If Executive is
entitled to payments and benefits pursuant to Exhibit A, she shall not
also be entitled to payments and benefits under this paragraph 5(d).
(e) TERMINATION FOR VOLUNTARY RESIGNATION, MUTUAL AGREEMENT OR OTHER
REASONS. If Executive's Termination Date occurs during the Employment
Period and is a result of Executive's voluntary resignation, the
mutual agreement of the parties, or any reason other than those
specified in paragraphs (b), (c), or (d) above or Exhibit A, then,
except as described in paragraph 5(a) or as agreed in writing between
Executive and the Company, Executive shall have no right to payments
or benefits under this Agreement (and the Company shall have no
obligation to make any such payments or provide any such benefits) for
periods after Executive's Termination Date.
(f) DEFINITIONS. For purposes of this Agreement:
(i) the term "Cause" shall mean (A) the continuous failure by
Executive to substantially perform Executive's duties under
this Agreement, as determined by the CEO and/or the Board and
after expiration of a cure period of 30 days following
Executive's receipt of written notice from the
6
CEO and/or the Board describing such failure; (B) the willful
engaging by Executive in conduct which is demonstrably and
materially injurious to the Company or its affiliates,
monetarily or otherwise, as determined by the CEO and/or the
Board, (C) conduct by Executive that involves theft, fraud or
dishonesty, (D) repeated instances of drug or alcohol abuse or
unauthorized absences during scheduled work hours, (E) the
Executive's having been convicted of, or having pled guilty or
no contest to, a felony, or (F) Executive's violation of the
provisions of Section 6 or 7 of this Agreement; and
(ii) the term "Disability" shall mean the inability of Executive to
continue to perform Executive's duties under this Agreement on
a full-time basis as a result of mental or physical illness,
sickness or injury for a period of 120 days within any
12-month period, as determined in the discretion of the CEO
and/or the Board.
Notwithstanding any other provision of this Agreement, Executive shall
automatically cease to be an officer of the Parent, the Company and their
respective affiliates as of Executive's Termination Date and, to the extent
permitted by applicable law, any and all monies that Executive owes to the
Company shall be repaid to the extent possible, through deduction of such
amounts from any post-termination payments owed to Executive pursuant to this
Agreement. Notwithstanding any other provision of this Agreement, the Company
may suspend Executive from performing Executive's duties under this Agreement;
provided, however, that during the period of suspension (which shall end no
later than Executive's Termination Date), Executive shall continue to be treated
as an employee of the Company for other purposes, and Executive's rights to
compensation or benefits hereunder shall be in effect. Other than as expressly
provided in paragraphs 5(c) and (d), post-termination benefits may not be
suspended or not paid.
6. CONFIDENTIAL INFORMATION. Executive agrees that:
(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, or except to the extent that Executive has
express authorization from the Company, Executive agrees to keep
secret and confidential indefinitely all non-public information
(including, without limitation, information regarding litigation and
pending litigation) concerning the Company and its affiliates
(collectively, "Confidential Information") which was acquired by or
disclosed to Executive during the course of Executive's employment
with the Company and not to disclose the same, either directly or
indirectly, to any other person, firm, or business entity, or to use
it in any way.
(b) Confidential Information does not include (i) information which, at
the time of disclosure is published, known publicly or is otherwise in
the public domain, through no fault of Executive; (ii) information
which, after disclosure is published or becomes known publicly or
otherwise becomes part of the public domain,
7
through no fault of Executive; and (iii) information which is required
to be disclosed in compliance with applicable laws or regulations or
by order of a court or other regulatory body of competent
jurisdiction.
(c) To the extent that any court or agency seeks to have Executive
disclose Confidential Information, Executive shall promptly inform the
Company, and Executive shall take such reasonable steps to prevent
disclosure of Confidential Information until the Company has been
informed of such requested disclosure, and the Company has an
opportunity to respond to such court or agency. To the extent that
Executive obtains information on behalf of the Company or any of its
affiliates that may be subject to attorney-client privilege as to the
Company's attorneys, Executive shall follow the guidelines provided by
the Company's legal counsel on maintaining the confidentiality of such
information and to preserve such privilege.
(d) Nothing in the foregoing provisions of this Section 6 shall be
construed so as to prevent Executive from using, in connection with
Executive's employment for herself or an employer other than the
Company and its affiliates, knowledge which was acquired by Executive
during the course of Executive's employment with the Company and its
affiliates and which is generally known to persons of Executive's
experience in other companies in the same industry.
7. NONCOMPETITION AND NONSOLICITATION. While Executive is employed by the
Company and its affiliates, and for a period of 1 year after Executive's
Termination Date (except as provided in Exhibit A), Executive agrees that:
(a) Executive will not, directly or indirectly engage in, assist, perform
services for, establish or open, or have any equity interest (other
than ownership of 5% or less of the outstanding stock of any
corporation listed on the New York or American Stock Exchange or
included in the National Association of Securities Dealers Automated
Quotation System) in any person, firm, corporation, partnership or
business entity (whether as an employee, officer, partner, director,
agent, security holder, creditor, consultant, or otherwise) that
engages in the Restricted Business (as defined below) in the
Restricted Territory (as defined below);
(b) Executive will not, directly or indirectly, for herself or on behalf
of or in conjunction with any other person, firm, corporation,
partnership or business entity, solicit or attempt to solicit any
party who is then or, during the 12-month period prior to such
solicitation or attempt by Executive was (or was solicited to become),
a customer of the Company, provided that the restriction in this
paragraph 7(b) shall not apply to any activity on behalf of a business
that is not a Restricted Business; and
(c) Executive will not (and will not attempt to) solicit, entice, persuade
or induce any individual who is employed by the Company or its
affiliates to terminate or
8
refrain from renewing or extending such employment or to become
employed by or enter into contractual relations with any other
individual or entity other than the Company or its affiliates, and
Executive shall not approach any such employee for any such purpose or
authorize or knowingly cooperate with the taking of any such actions
by any other individual or entity.
For purposes of this Agreement the term (A) "Restricted Business" means the
business of providing wireless telecommunication services or any other business
in which the Company is materially engaged on Executive's Termination Date, and
(B) "Restricted Territory" means the basic trading areas (as defined in the Rand
XxXxxxx Commercial Atlas and Marketing Guide or the successor thereto) ("BTA")
set forth in Exhibit C hereto in which the Company has been granted the right to
carry on the Restricted Business, or any other BTA in which the Company has been
granted the right to carry on the Restricted Business as of Executive's
Termination Date.
8. EQUITABLE REMEDIES. Executive acknowledges that the Company would be
irreparably injured by a violation of Sections 6 or 7 hereof and Executive
agrees that the Company, in addition to any other remedies available to it for
such breach or threatened breach, shall be entitled to a preliminary injunction,
temporary restraining order, or other equivalent relief, restraining Executive
from any actual or threatened breach of either Section 6 or 7. If a bond is
required to be posted in order for the Company to secure an injunction or other
equitable remedy, the parties agree that said bond need not be more than a
nominal sum.
9. NOTICES. Any notices provided for in this Agreement shall be in
writing and shall be deemed to have been duly received when delivered in person
or sent by facsimile transmission, on the first business day after it is sent by
air express courier service or on the second business day following deposit in
the United States registered or certified mail, return receipt requested,
postage prepaid and addressed, in the case of Executive, to the most recent home
address reflected in the Company's records and, in the case of the Company, to
its principal executive offices, or such other address as either party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon actual receipt. In addition,
on and after Executive's Termination Date, the Company shall notify Executive of
the person or persons Executive should contact regarding matters relating to
this Agreement (and the address and telephone number of such person or persons)
and any changes to such contact information. All notices pursuant to the
preceding sentence shall be given in accordance with this Section 9.
10. WITHHOLDING. All compensation payable under this Agreement shall be
subject to customary withholding taxes and other employment taxes as may be
required with respect to compensation paid by a corporation to an employee and
the amount of compensation payable hereunder shall be reduced appropriately to
reflect the amount of any required withholding. Except as specifically required
herein, the Company shall have no obligation to make any payments to Executive
or to make Executive whole for the amount of any required taxes.
9
11. SUCCESSORS. This Agreement shall be binding on, and inure to the
benefit of, the Company and its successors and assigns and any person acquiring,
whether by merger, reorganization, consolidation, by purchase of assets or
otherwise, all or substantially all of the assets of the Company. To the extent
applicable, this Agreement shall be binding on, and inure to the benefit of, the
Parent and its successors and assigns and any person acquiring, whether by
merger, reorganization, consolidation, by purchase of assets or otherwise, all
or substantially all of the assets of the Parent.
12. NONALIENATION. The interests of Executive under this Agreement are not
subject to the claims of Executive's creditors, other than the Company, and may
not otherwise be voluntarily or involuntarily assigned, alienated or encumbered.
13. WAIVER OF BREACH. The waiver by the Company, the Parent or Executive
of a breach of any provision of this Agreement shall not operate as or be deemed
a waiver by such party of any subsequent breach. Continuation of payments
hereunder by the Company following a breach by Executive of any provision of
this Agreement shall not preclude the Company from thereafter terminating said
payments based upon the same violation.
14. SEVERABILITY. It is mutually agreed and understood by the parties that
should any of the agreements and covenants contained herein be determined by any
court of competent jurisdiction to be invalid by virtue of being vague or
unreasonable, including but not limited to the provisions of Sections 6 or 7,
then the parties hereto consent that this Agreement shall be amended retroactive
to the date of its execution to include the terms and conditions said court
deems to be reasonable and in conformity with the original intent of the parties
and the parties hereto consent that under such circumstances, said court shall
have the power and authority to determine what is reasonable and in conformity
with the original intent of the parties to the extent that said covenants and/or
agreements are enforceable.
15. PREVAILING PARTY. In the event of any action, proceeding or litigation
(collectively, the "Action") between the parties arising out of or in relation
to this Agreement, the prevailing party in such Action, shall be entitled to
recover, in addition to any damages, injunctions, or other relief and without
regard to whether the Action is prosecuted to final appeal, all of its costs and
expenses including, without limitation, reasonable attorney's fees, from the
non-prevailing party.
16. APPLICABLE LAW. This Agreement shall be construed in accordance with
the laws of the State of Illinois, without regard to conflict of law principles.
17. AMENDMENT. This Agreement may be amended or cancelled by mutual
Agreement of the parties in writing without the consent of any other person.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof
10
containing multiple signature pages, each signed by one party hereto, but
together signed by both of the parties hereto.
19. OTHER AGREEMENTS. This Agreement constitutes the sole and complete
Agreement between or among the Company, the Parent and Executive and supersedes
all other prior or contemporaneous agreements, both oral and written, between or
among the Company, the Parent and Executive with respect to the matters
contained herein including, including without limitation, any prior employment
agreements and any severance agreements or arrangements between or among the
parties. No verbal or other statements, inducements, or representations have
been made to or relied upon by Executive. The parties have read and understand
this Agreement.
11
IN WITNESS THEREOF, Executive has hereunto set Executive's hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the day and year first above written.
iPCS Wireless, Inc.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Its: President and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxxx
IN WITNESS THEREOF, the Parent has caused these presents to be executed in
its name and on its behalf, all as of the day and year first above written, for
the limited purposes specified herein.
iPCS, Inc.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Its: President and Chief Executive Officer
12
EXHIBIT A
CHANGE IN CONTROL
The provisions of this Exhibit A shall apply if Executive's Termination Date (i)
occurs during the Employment Period, (ii) occurs on or within the one year
period after the effective date of a Change in Control and (iii) is a result of
the termination of Executive's employment by the Company (or its successor) for
any reason other than Cause or is a result of Executive's termination of her
employment with the Company (or its successor) for Good Reason (as defined in
Section 2 of this Exhibit A).
1. BENEFITS AND PAYMENTS ON TERMINATION. If the provisions of this
Exhibit A apply, then Executive shall be entitled to the following payments and
benefits (in addition to any payments and benefits to which she is entitled
under paragraph 5(a) of the Agreement and the following provisions of this
Exhibit A):
(a) a lump sum payment equal to 100% of Executive's Annual Base Salary;
(b) continuation of health benefits for Executive and Executive's
qualified beneficiaries for period beginning on the Termination Date
and ending on the first anniversary of the Termination Date at a cost
which is no greater than is charged to active employees of the Company
and their dependents, which continuing health benefits shall be
provided only if Executive and Executive's qualified beneficiaries, as
applicable, make a timely and proper election to be covered under
COBRA;
(c) a lump sum payment equal to one times Executive's Target Incentive
Bonus for the year in which the Termination Date occurs;
(d) immediate vesting of any and all stock options, restricted stock
units, shares of restricted stock or other incentive awards held by
Executive; and
(e) an amount equal to the Target Incentive Bonus that would have been
payable to Executive for the fiscal year in which the Termination Date
occurs assuming all applicable performance targets had been satisfied,
pro rated (on a daily basis) through Executive's Termination Date.
Payments to be made to Executive pursuant to this Section 1 shall be made
no later than 15 days after Executive's Termination Date.
2. DEFINITION OF GOOD REASON. For purposes of this Agreement, the term
"Good Reason" means the occurrence of any of the following in anticipation of or
within the one year period immediately following a Change in Control: (a) the
assignment to Executive of duties that are materially inconsistent with
Executive's duties described in Section 3 of the Agreement,
1
including, without limitation, a material diminution or reduction in Executive's
office or responsibilities or a reduction in Executive's rate of Annual Base
Salary, bonus opportunity or other compensation or an adverse change in
Executive's reporting relationship, (b) the relocation of Executive to a
location that is not within 35 miles of Executive's then current principal place
of business and more than 35 miles from Executive's principal residence, or (c)
the failure of the Company to continue in effect any of the Company's annual and
long-term incentive compensation plans or employee benefit or retirement plans,
policies, practices, or other compensation arrangements in which Executive
participates (other than equity-based compensation arrangements) unless such
failure to continue the plan, policy, practice or arrangement (i) is required by
law, or (ii) pertains to all plan participants generally and the lost value is
being replaced by a new plan, policy, practice or arrangement of reasonably
equivalent value
3. EXERCISABILITY OF STOCK OPTIONS. With respect to terminations to which
this Exhibit A apply, the Parent agrees that for purposes of determining the
exercisability of Executive's stock options under the Incentive Plan outstanding
on the Termination Date, subject to the terms of the Incentive Plan and the
option agreements thereunder, options shall remain exercisable through the fifth
anniversary of the Change in Control event,, the Parent agrees to take any and
all actions necessary, if any, to ensure that the Incentive Plan reflects the
foregoing and the Parent agrees that each option agreement evidencing the
options outstanding under the Incentive Plan shall reflect the foregoing.
Nothing in this Section 3 shall be deemed to extend the expiration date of any
stock option granted under the Incentive Plan past the original expiration date
of such option as determined at the time of grant.
2
EXHIBIT B
GROSS-UP PAYMENT
Subject to the provisions of this Exhibit B, Executive shall be eligible for the
benefits described in this Exhibit B, and shall be subject to the terms of this
Exhibit B, regardless of whether Executive is employed by the Company on or
after the occurrence of a Change in Control and, if Executive's Termination Date
shall have occurred, regardless of the reason for such termination.
1. GROSS-UP PAYMENT. In the event it shall be determined that any
payment, benefit or distribution (or combination thereof) from the Company, any
affiliate, or trusts established by the Company or by any affiliate, for the
benefit of its employees, to Executive or for Executive's benefit (whether paid
or payable or distributed or distributable pursuant to the terms of the
Agreement or otherwise, and with a "payment" including, without limitation, the
vesting of an option, restricted stock units, shares of restricted stock or
other non-cash benefit or property) (any of which are referred to as a
"Payment") would be subject to the excise tax imposed by section 4999 of the
Code, or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties,
hereinafter collectively referred to as the "Excise Tax"), Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that, after payment by Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes and payroll taxes (and any interest and penalties imposed with
respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the sum of: (a) the Excise
Tax imposed upon the Payments; plus (b) an amount equal to the product of any
deductions disallowed for federal, state, or local income tax purposes because
of the inclusion of the Gross-up Payment in Executive's adjusted gross income
multiplied by the highest applicable marginal rate of federal, state, or local
income taxation, respectively, for the calendar year in which the Gross-up
Payment is to be made.
2. DETERMINATIONS RELATING TO GROSS-UP PAYMENT. All determinations
required to be made under this Exhibit B, 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 such determination, shall be made by the
nationally recognized certified public accounting firm that performed the last
annual audit of the Company in the normal course of business immediately prior
to the Change in Control (the "Accounting Firm"), which shall provide detailed
supporting calculations both to the Company and Executive within fifteen (15)
business days of the receipt of notice from the Company that there has been a
Payment, or such earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Exhibit B shall be paid by the
Company to Executive within fifteen (15) days after the receipt of the
Accounting Firm's determination. If the Accounting Firm determines that no
Excise Tax is payable by Executive, it shall so indicate to Executive in
writing. Any determination by the Accounting Firm shall be binding upon the
Company and Executive. As a result of the uncertainty in the application of
1
section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 3 of this Exhibit B and
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be paid by the Company to Executive or for
Executive's benefit within five (5) days after such determination is made.
3. NOTIFICATION OF CLAIM. Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if successful, would require
the payment by the Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten (10) business days after
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. Executive shall not pay such claim prior to the expiration of the thirty
(30) day period following the date on which she gives such notice to the Company
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim,
Executive shall:
(a) give the Company any information requested by the Company relating to
such claim;
(b) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company;
(c) cooperate with the Company in good faith in order to effectively
contest such claim; and
(d) permit the Company to participate in any proceedings relating to such
claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold 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 such representation and payment of costs and expenses. Without limiting
the foregoing provisions of this Section 3, the Company shall control all
proceedings taken in connection with such 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 such claim
and may, at its sole option, either direct Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner, and
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the
4
Company shall determine; provided, however, that if the Company directs
Executive to pay such claim and xxx for a refund, the Company shall advance
the amount of such payment to Executive, on an interest-free basis, and
shall indemnify and hold 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 such advance or with respect to any
imputed income with respect to such advance; and provided, further, that if
Executive is required to extend the statute of limitations to enable the
Company to contest such claim, Executive may limit this extension solely to
such contested amount. The Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and 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.
4. REFUNDS. If, after the receipt by Executive of an amount advanced by
the Company pursuant to Section 3, Executive becomes entitled to receive any
refund with respect to such claim, Executive shall promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 3, a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty (30) days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
3
EXHIBIT C
BASIC TRADING AREAS
ILLINOIS Bloomington, IL BTA# 46
Champaign,Urbana, IL BTA# 00
Xxxxxxx, XX-Xxxxxxxx, XX BTA# 86
Danville, IL BTA# 000
Xxxxxxxxx, XX-Xxxxxx, XX BTA# 000
Xxxxxxx-Xxxxxxxxx, XX BTA# 000
Xxxxxxxxx, XX BTA# 000
Xxxxxxxxxxxx, XX BTA# 213
Kankakee, IL BTA# 225
LaSalle-Peru-Ottawa-Streator, IL BTA# 000
Xxxxxxx, XX BTA# 286
Mt. Xxxxxx-Centralia, IL BTA# 000
Xxxxxx, XX BTA# 000
Xx. Xxxxx, XX (Macoupin County, IL only) BTA# 000
Xxxxxxxxxxx, XX BTA# 000
XXXXXXXX Xxxxx, XX (partial)* BTA# 000
Xxxxxxx, XX (partial)* BTA# 000
Xxxxxxxx, XX BTA# 000
Xxxxxxx, XX BTA# 000
Xxxxx Xxxxxx-Xxxxxxx, XX BTA# 000
XXXX Xxxx Xxxxx, XX BTA# 000
Xxxxxxxx-Xxxxx Xxxxx, XX BTA# 000
Xxxxxxx, XX BTA# 000
Xxxxxxxxxx, XX BTA# 00
Xxxxxxx, XX BTA# 000
Xxx Xxxxxx, XX (partial)* BTA# 000
Xxxxxxxxxxxx, XX XXX# 000
Xxxxx Xxxx, XX BTA# 000
Xxxxx Xxxxxx, XX XXX# 00
Xxxx Xxxx, XX BTA# 000
XXXXXXXX Xxxxxxxx Xxxx, XX BTA# 000
Xxxxxxx-Xxx Xxxx, XX BTA# 000
Xxxxxxxx, XX BTA# 000
Xxxxx Xxxxxx, XX BTA# 000
Xxxxx Xxxxxxxx, XX BTA# 307
Lansing, MI (partial)* BTA# 000
Xxxxxx Xxxxx, XX (partial)* BTA# 33
1
