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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This AGREEMENT dated as of October 1, 1999 between Superior TeleCom Inc., a
Delaware corporation (the "Company"), and William F. Evans (the "Executive").
The Board of Directors of the Company (the "Board") recognizes that the
Executive's contribution to the future growth and success of the Company is
expected to be substantial. Whereas the Executive serves as an Executive Vice
President of the Company. Whereas the Board desires to provide for the continued
employment of the Executive with the Company which the Board has determined will
reinforce and encourage the continued attention and dedication of the Executive
to the Company as a member of the Company's management, in the best interest of
the Company and its stockholders. Whereas the Executive is willing to commit
himself to serve the Company, on the terms and conditions herein provided.
Moreover, the Board has determined that it is in the best interest of the
Company and its stockholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the Company. 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 and to encourage the Executive's full attention
and dedication to the Company currently and in the event of any threatened or
pending Change of Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that the
compensation and benefits expectations of the Executive will be satisfied and
which are competitive with those of other corporations.
In order to effect the foregoing, the Company and the Executive wish to enter
into this Agreement on the terms and conditions set forth below.
Accordingly, in consideration of the premises and the respective covenants and
agreements of the parties herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive, and
the Executive hereby agrees to serve the Company, on the terms and conditions
set forth herein.
2. TERM.
(a) The employment of the Executive by the Company hereunder
commenced on July 26, 1999 (the "Commencement Date") and will continue in effect
(i) until either party gives notice to the other, as provided in Section 8(d),
that it does not wish to continue the Executive's employment hereunder, (ii)
until terminated as provided in Sections 8(a), (b) or (c) or (iii) until July
26, 2002. The "Term" shall be the period commencing on the date hereof and
ending on the earlier to occur of the events specified in clause (i), (ii) or
(iii) of the preceding
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sentence.
(b) Notwithstanding paragraph (a) above or the provisions of
Section 8(d), the Company hereby agrees to continue the Executive in its employ,
and the Executive hereby agrees to remain in the employ of the Company subject
to the terms and conditions of this Agreement, during any Transition Period. For
purposes of this Agreement, the Term shall, unless otherwise specified, include
any Transition Period.
3. CERTAIN DEFINITIONS.
(a) A "COC Transition Date" shall mean a date during the Term
(as defined in Section 2) on which a Change of Control (as defined in Section 4)
occurs. Anything in this Agreement to the contrary notwithstanding, if a Change
of Control occurs and if the Executive's employment with the Company is
terminated prior to the date on which the Change of Control occurs, and if it is
reasonably demonstrated by the Executive that such termination of employment (i)
was at the request of a third party who has taken steps reasonably calculated to
effect a Change of Control or (ii) otherwise arose in connection with or in
anticipation of a Change of Control, then for all purposes of this Agreement the
"COC Transition Date" shall mean the date immediately prior to the date of such
termination of employment.
(b) A "Transition Period" is a period commencing on a COC
Transition Date and ending on the third anniversary of such date. If a
subsequent COC Transition Date is determined to occur during a Transition
Period, then such Transition Period shall continue until the third anniversary
of such subsequent COC Transition Date. If a subsequent COC Transition Date
occurs after the expiration of a Transition Period, a new Transition Period will
commence on such date and end on the third anniversary thereof.
(c) Notwithstanding anything to the contrary in this
Agreement, for purposes of calculating payments under Section 12(f), "Applicable
Bonus" means the higher of (i) the Highest Recent Bonus (as defined in Section
12(b)(i)) and (ii) the Annual Bonus (as defined in Section 6(c)) paid or
payable, including any bonus or portion thereof which has been earned but
deferred (and annualized for any fiscal year consisting of less than twelve full
months or during which the Executive was employed for less than twelve full
months), for the most recently completed fiscal year during the Term, if any
(the "Recent Annual Bonus") (such higher amount being referred to as the
"Highest Annual Bonus"). For purposes of calculating payments under all sections
of this Agreement other than Section 12(f), Applicable Bonus means the Recent
Annual Bonus.
(d) A "Stock Option" is an option to purchase a number of
shares of stock of the Company at a fixed exercise price granted to the
Executive by the Stock Option Committee of the Board or any successor committee
(the "Stock Option Committee"), whether or not exercisable.
4. CHANGE OF CONTROL. For the purpose of this Agreement, a "Change of
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Control" shall mean:
(a) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of voting securities of the Company where such acquisition causes such Person to
own more than 20% or more of the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
for purposes of this subsection (a), the following acquisitions shall not be
deemed to result in a Change of Control: (i) any acquisition directly from the
Company, (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, (iv) any acquisition by any
corporation pursuant to a transaction that complies with clauses (i), (ii) and
(iii) of subsection (c) below or (v) any acquisition by Steven S. Elbaum, The
Alpine Group, Inc. ("Alpine") or any corporation in which Steven S. Elbaum or
Alpine own, directly or indirectly, more than 50% of the outstanding shares of
common stock or the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be; and provided, further, that if any Person's beneficial ownership of the
Outstanding Company Voting Securities reaches or exceeds more than 20% as a
result of a transaction described in clause (i) or (ii) above, and such Person
subsequently acquires beneficial ownership of additional voting securities of
the Company, such subsequent acquisition shall be treated as an acquisition that
causes such Person to own more than 20% or more of the Outstanding Company
Voting Securities; or
(b) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of assets of another corporation
("Business Combination"); excluding, however, such a Business Combination
pursuant to which (i) (x) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company Voting
Securities immediately prior to such Business Combination, (y) Steven S. Elbaum
or (z) Alpine, beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock or the combined voting
power of the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation resulting from
such Business Combination (including, without limitation, a corporation that as
a result of such transaction
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owns the Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination
of the Outstanding Company Voting Securities, (ii) no Person (excluding any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, more than 20% or more of, respectively, the then outstanding shares
of common stock of the corporation resulting from such Business Combination or
the combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
5. POSITION AND DUTIES.
(a) The Executive shall serve as an Executive Vice President
of the Company, reporting directly to the Chief Executive Officer, and shall
serve as the President of the Electrical Wire business segment of the Industrial
Products Group of the Company, reporting directly to the President of the
Industrial Products Group, with such responsibilities, duties and authority as
are from time to time assigned to the Executive by the Chief Executive Officer
or the Board. The Executive's duties shall be performed primarily at the
Company's office in Ft. Wayne, Indiana or such other location in which the
executive offices of the Electrical Wire business segment may be situated.
(b) During the Term, and excluding any periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Term it shall not be a violation of this Agreement
for the Executive to (A) serve on corporate, civic or charitable boards or
committees, provided that the Chief Executive Officer of the Company first
approves of such service, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions or (C) manage personal investments, so long as
such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement and are not directly competitive with the operating businesses of
the Company's subsidiaries. The Company hereby acknowledges that the Executive
shall be entitled to continue serving as a member of the board of directors of
Interim Service, Inc.
6. COMPENSATION AND RELATED MATTERS.
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(a) SALARY. During the Term, the Company shall pay to the
Executive an annual base salary (the "Annual Base Salary") of $250,000 or such
higher rate as may from time to time be determined by the Board, such salary to
be paid in substantially equal installments in accordance with the normal
payroll practice of the Company. The Executive's Annual Base Salary shall be
increased to $265,000, effective as of January 1, 2000 and to $285,000,
effective as of January 1, 2001. Thereafter, the Executive's salary will be
reviewed at least annually and shall be increased pursuant to such review by a
percentage no less than the percentage increase in the consumer price index, as
published by Bureau of Labor Statistics of the U.S. Department of Labor, for the
calendar year immediately preceding such review. Any increase in Annual Base
Salary shall not serve to limit or reduce any other obligation to the Executive
under this Agreement. Annual Base Salary shall not be reduced after any such
increase and the term Annual Base Salary as utilized in this Agreement shall
refer to Annual Base Salary as so increased.
(b) SIGN-ON BONUS. As an inducement to enter this Agreement,
the Executive shall be entitled to the following:
(i) On the Commencement Date and on each of the
first two anniversaries thereof, the Company shall pay the Executive a lump sum
cash payment in the amount of $150,000 provided the Executive is employed at the
time any such payment is to be made to the Executive. Fifty percent of any such
payment shall be returned to the Company in the event the Executive shall
terminate employment with the Company without Good Reason or for Cause prior to
the first anniversary of each such payment.
(ii) The Stock Option Committee granted the Executive
14,000 Stock Options to purchase shares of common stock of the Company ("Company
Stock"), at an exercise price per share equal to the fair market value of the
Company Stock on the date the Stock Option was granted (the "Company Grant
Date") and becoming exercisable in two equal annual installments on the first
and second anniversaries of the Company Grant Date. The terms and conditions
applicable to Stock Options granted pursuant to this Section 6(b)(ii) shall be
set forth in a separate agreement in a form prescribed by the Company.
(iii) The Executive Compensation and Organization
Committee of Alpine granted the Executive 27,000 stock options to purchase
shares of the common stock of Alpine ("Alpine Stock"), at an exercise price per
share equal to the fair market value of Alpine Stock on the date the stock
option to purchase Alpine Stock was granted (the "Alpine Grant Date") and
becoming exercisable in two equal annual installments on the first and second
anniversaries of the Alpine Grant Date. Shares of Alpine Stock granted pursuant
to this Agreement shall be made available, at Alpine's election, either from
issued shares of Alpine Stock reacquired by Alpine and held in treasury or
pursuant to Alpine's 1997 Stock Option Plan (the "Alpine Option Plan"). The
terms and conditions applicable to stock options granted pursuant to this
Section 6(b)(iii) shall be set forth in a separate agreement in a form
prescribed by Alpine.
(c) ANNUAL BONUS. In addition to the Annual Base Salary, the
Company
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will pay the Executive an annual cash bonus (the "Annual Bonus") within 30 days
following the last day of the Company's fiscal year for which the Annual Bonus
is awarded, based on the performance of the Company pursuant to a performance
plan established by the Company and approved by the Board or the Compensation
Committee of the Board. Such Annual Bonus shall not be less than $150,000 for
the 1999 fiscal year, $100,000 for the 2000 fiscal year and $50,000 for the 2001
fiscal year.
(d) STOCK OPTIONS.
(i) On the Company Grant Date, the Stock Option
Committee granted the Executive 50,000 Stock Options (the "Initial Options") to
purchase shares of Company Stock, at an exercise price per share equal to the
fair market value of the Company Stock on the Company Grant Date and becoming
exercisable in three equal annual installments on the first, second and third
anniversaries of the Company Grant Date. The terms and conditions applicable to
Stock Options granted pursuant to this Section 6(d)(i) shall be set forth in a
separate agreement in a form prescribed by the Company.
(ii) On the Alpine Grant Date, the Executive
Compensation and Organization Committee of Alpine granted the Executive 50,000
stock options to purchase shares of Alpine Stock, at an exercise price per share
equal to the fair market value of Alpine Stock on the Alpine Grant Date and
becoming exercisable in three equal annual installments on the first, second and
third anniversaries of the Alpine Grant Date. Shares of Alpine Stock granted
pursuant to this Agreement shall be made available, at Alpine's election, either
from issued shares of Alpine Stock reacquired by Alpine and held in treasury or
pursuant to Alpine's Option Plan. The terms and conditions applicable to stock
options granted pursuant to this Section 6(d)(ii) shall be set forth in a
separate agreement in a form prescribed by Alpine.
(e) EXPENSES. During the term of the Executive's employment
hereunder, the Executive shall be entitled to receive prompt reimbursement for
all reasonable and customary expenses incurred by the Executive in performing
services hereunder, including (i) all expenses of travel and living expenses
while away from home or business or at the request of and in the service of the
Company and (ii) a monthly cash automobile allowance of $2,000 covering all
expenses of maintaining and operating the automobile (including, without
limitation, cost, repairs, maintenance, insurance and parking), provided that
all such expenses are accounted for in accordance with the policies and
procedures established by the Company.
(f) WELFARE BENEFITS. During the Term, the Executive and/or
the Executive's family, as the case may be, shall be eligible for participation
in and shall receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are materially less favorable, in the
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aggregate, than the most favorable of such plans, practices, policies and
programs in effect for the Executive as of the date hereof or, if more favorable
to the Executive, those provided generally at any time to other peer executives
of the Company and its affiliated companies. As used in this Agreement, the term
"affiliated companies" shall include any company controlled by, controlling or
under common control with the Company.
(g) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the Term,
the Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to other
peer executives of the Company and its affiliated companies. The Executive shall
be designated as eligible to participate in The Alpine Group, Inc. Senior
Executive Retirement Plan.
(h) FRINGE BENEFITS. During the Term:
(i) The Company shall reimburse the Executive for the
reasonable expenses incurred by the Executive in undergoing an annual physical
examination by a licensed physician.
(ii) The Company shall reimburse the Executive for
the reasonable expenses incurred by the Executive in connection with obtaining
professional tax and financial planning advice.
(i) VACATION. During the Term, the Executive shall be entitled
to paid vacation of four weeks per year, any unused portion of which shall be
forfeited as of the end of each year.
(j) RELOCATION. The Executive shall be entitled to relocation
benefits pursuant to the Company's relocation benefit program in connection with
the Executive's relocation from Westin, Florida to Ft. Wayne, Indiana or any
other agreed relocation.
(k) DISABILITY OFFSET. Payments made to the Executive pursuant
to this Section 6 shall be reduced by the sum of the amounts, if any, payable to
the Executive at or prior to the time of any such payment under disability
benefit plans of the Company or under the Social Security disability insurance
program, and which amounts were not previously applied to reduce any such
payments.
7. OFFICES. Subject to Section 5, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a director of the
Company and any of its subsidiaries and in one or more executive offices of any
of the Company's subsidiaries, provided that the Executive is indemnified for
serving in any and all such capacities.
8. TERMINATION. The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the following circumstances:
(a) DEATH OR DISABILITY. The Executive's employment shall
terminate
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automatically upon the Executive's death during the Term. If the Company
determines in good faith that Disability of the Executive has occurred during
the Term (pursuant to the definition of Disability set forth below), it may give
to the Executive written notice in accordance with Section 17 of this Agreement
of its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive business days (or such shorter period as will suffice for the
Executive to qualify for full disability benefits under the applicable
disability insurance policy or policies of the Company) as a result of
incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and reasonably
acceptable to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's
employment during the Term for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the conviction of the Executive of any crime
involving a felony or fraud, embezzlement or other defalcation, or
(ii) the willful and material breach by the Executive
of the Executive's obligations hereunder, including, without limitation, the
intentional and repeated failure to discharge responsibilities consistent with
the Executive's office and established corporate policies, direct or indirect,
employment with or active financial interest in a third party, violation of
appropriate non-compete or confidentiality agreements, unless such breach is
corrected within 30 days following delivery of the resolution provided for in
the next paragraph.
For purposes of this provision, no act or failure to act, on
the part of the Executive, shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without reasonable belief
that the Executive's action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or upon the instructions of the Chief
Executive Officer or a senior officer of the Company or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, by the Executive in good faith and in the best interests of the
Company. The cessation of employment of the Executive shall not be deemed to be
for Cause unless and until there shall have been delivered to the Executive 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 called
and held for such purpose (after reasonable notice is provided to the Executive
and the Executive is given an opportunity, together with counsel, to be heard
before the Board), finding that, in the good faith opinion of the Board, the
Executive is guilty of the conduct described in subparagraph (i) or (ii) above,
and specifying the particulars thereof in detail.
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(c) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. The
Executive's employment may be terminated by the Executive for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties
materially inconsistent with the Executive's position (including status, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 5(a) of this Agreement, or any other action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose isolated and inadvertent
action(s) not taken in bad faith and remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(ii) any material failure by the Company to comply
with any of the provisions of Section 6 or Section 12(a) or (b) of this
Agreement, other than isolated and inadvertent failure(s) not occurring in bad
faith and remedied by the Company promptly after receipt of notice thereof given
by the Executive;
(iii) any termination by the Company of the
Executive's employment otherwise than as expressly permitted
by this Agreement; or
(iv) any failure by the Company to comply with and
satisfy Section 16(a) of this Agreement.
(d) TERMINATION ELECTION. Subject to the provisions of
Section 2(b):
(i) A notice to Executive by the Company will
constitute an election by the Company to terminate the Executive's employment
pursuant to Section 2(a) 45 days following the date of delivery of the notice;
(ii) A notice to the Company by the Executive will
constitute an election by the Executive to terminate Executive's employment
pursuant to Section 2(a) 60 days following the date of delivery of the notice;
(iii) In no event, however, shall the Term of the
Executive's employment hereunder extend beyond the end of the month in which the
Executive's sixty-fifth (65th) birthday occurs.
(e) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive (other than termination by reason
of the Executive's death) shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 17 hereof. For purposes of
this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, 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 (iii) if the Date of Termination
(as defined below) is other than the
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date of receipt of such notice, specifies the termination date. The good faith
failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(f) DATE OF TERMINATION. "Date of Termination" shall mean (i)
if the Executive's employment is terminated by reason of death or Disability,
the date of death of the Executive or the Disability Effective Date, as the case
may be, (ii) if the Executive's employment is terminated for Cause, the date
specified in the Notice of Termination, which shall be at least 15 days after
the receipt of such notice, (iii) if the Executive's employment is terminated by
either of the elections pursuant to Section 8(d) above, the applicable date of
termination determined under Section 8(d) above, and (iv) if the Executive's
employment is terminated for any other reason, the date on which a Notice of
Termination is given; provided, however, that, if within 30 days after any
Notice of Termination is given the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination, the
Date of Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by a binding and
final arbitration award or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected).
9. COMPENSATION UPON TERMINATION.
(a) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Term, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations (as defined in Section 12(f)(i)a.) and the timely payment
or provision of Other Benefits (as defined in Section 12(f)(iv)). Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination. Notwithstanding the foregoing, the Company shall
maintain, at the Company's sole expense, in full force and effect, for the
continued benefit of the Executive for twelve months following the Disability
Effective Date, all employee welfare benefit plans and programs in which the
Executive was entitled to participate immediately prior to the Disability
Effective Date provided that the Executive's continued participation is possible
under the general terms and provisions of such plans and programs. In the event
that the Executive's participation in any such plan or program is barred, the
Company shall arrange to provide the Executive with benefits substantially
similar to those which the Executive would otherwise have been entitled to
receive under such plans and programs from which his continued participation is
barred.
(b) DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Term, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for (i) payment of Accrued Obligations (as defined in
Section 12(f)(i)a.), calculated as if the Executive's employment had
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continued for a period of 12 months following the date of death; and (ii) the
timely payment or provision of Other Benefits (as defined in Section 12(f)(iv)).
Accrued Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
(c) CAUSE. If the Executive's employment shall be terminated
for Cause during the Term, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay to the Executive
(i) his Annual Base Salary through the Date of Termination, (ii) the amount of
any compensation previously deferred by the Executive subject to the terms of
any plan or program, and (iii) Other Benefits, in each case to the extent
theretofore unpaid.
(d) VOLUNTARY TERMINATION. If the Executive voluntarily
terminates employment during the Term, excluding a termination for Good Reason,
this Agreement shall terminate without further obligations to the Executive,
other than for Accrued Obligations, the timely payment or provision of Other
Benefits and the amount of any compensation previously deferred by the Executive
subject to the terms of any plan or program. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
(e) TERMINATION ELECTION BY COMPANY; TERMINATION BY EXECUTIVE
FOR GOOD REASON. If the Executive's employment is terminated by the Company
under Section 8(d)(i) hereof or by the Executive under Section 8(c) hereof, the
Company shall pay to the Executive a lump sum in cash within 10 days of the Date
of Termination in an amount equal to the present value (using the prime rate of
interest as the applicable discount factor) of the Annual Base Salary as set
forth in Section 6(a), the amounts set forth in Section 6(b)(i) and the minimum
Annual Bonuses as set forth in Section 6(c) that would be payable between the
Date of Termination and July 26, 2002. In addition, (i) all unvested Stock
Options and stock options to purchase shares of Alpine Stock provided for
respectively under Sections 6(b)(ii) and 6(b)(iii) shall be immediately vested:
and (ii) the Executive shall be entitled to receive and/or exercise all vested
Stock Options and stock options to purchase shares of Alpine Stock in accordance
with terms of such awards.
10. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor, subject to Section 21,
shall anything herein limit or otherwise affect such rights as the Executive may
have under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
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11. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement. Unless the
Executive's termination of employment gives rise to a right to payments and
welfare benefits described in Section 12, if the Executive secures other
employment, any welfare benefits the Company is required to provide to the
Executive following termination of the Executive's employment shall be secondary
to those provided by another employer (if any). However, if the Executive's
employment is terminated such that the Executive has a right to payments and
welfare benefits under Section 12, such amounts shall not be reduced whether or
not the Executive obtains other employment.
12. CHANGE OF CONTROL PROVISIONS. The following provisions of this
Section 12 shall apply notwithstanding any contrary or inconsistent provision in
any other section of this Agreement, and all other provisions of this Agreement,
to the extent they may be contrary to or inconsistent with the provisions of
this Section 12, are hereby made subject to the provisions of this Section 12,
which shall be paramount in all respects, provided, however, that the provisions
of Section 3(c) shall apply, where applicable.
(a) POSITION AND DUTIES. During any Transition Period, the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding a COC Transition Date, and the Executive's services shall be performed
at the location where the Executive was employed immediately preceding a COC
Transition Date.
(b) COMPENSATION AND RELATED MATTERS.
(i) ANNUAL BONUS. For each fiscal year ending during
any Transition Period, the Company shall pay to the Executive an Annual Bonus in
cash at least equal to the Executive's highest cash bonus under the Company's
annual cash bonus program, or any comparable cash bonus under any predecessor or
successor plan, for the last three full fiscal years prior to the latest COC
Transition Date (the "Highest Recent Bonus"). Each such Annual Bonus shall be
paid no later than 60 days following the commencement of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus.
(ii) WELFARE BENEFITS. During any Transition Period,
the benefits to which the Executive and/or the Executive's family are entitled
to pursuant to Section 6(f) shall be no less favorable, in the aggregate, than
the most favorable of such plans, practices, policies and programs in effect for
the Executive at any time during the 120-day period immediately preceding the
latest COC Transition Date or, if more favorable to the Executive,
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those provided generally at any time after the latest COC Transition Date to
other peer executives of the Company and its affiliated companies.
(iii) INCENTIVE, SAVINGS AND RETIREMENT PLANS.
During any Transition Period, the plans, practices, policies and programs in
which the Executive is entitled to participate pursuant to Section 6(g) shall
provide the Executive with incentive opportunities (measured with respect to
both regular and special incentive opportunities, to the extent, if any, that
such distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, at least as favorable, in the aggregate, as the
most favorable of those provided by the Company and its affiliated companies for
the Executive under such plans, practices, policies and programs as of the date
hereof or if more favorable to the Executive, those provided generally at any
time to other peer executives of the Company and its affiliated companies.
(iv) FRINGE BENEFITS. During any Transition Period,
the Executive shall be entitled to fringe benefits, including, without
limitation, the benefits described in Section 6(h), in accordance with the most
favorable plans, practices, programs and policies of the Company and its
affiliated companies in effect for the Executive at any time during the 120-day
period immediately preceding the latest COC Transition Date or, if more
favorable to the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated companies.
(v) OFFICE AND SUPPORT STAFF. During any Transition
Period, the Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to exclusive personal secretarial
and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies at any
time during the 120-day period immediately preceding the latest COC Transition
Date or, if more favorable to the Executive, as provided generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies.
(vi) VACATION. During any Transition Period, the
Executive shall be entitled to paid vacation in accordance with the most
favorable plans, policies, programs and practices of the Company and its
affiliated companies as in effect for the Executive at any time during the
120-day period immediately preceding the latest COC Transition Date or, if more
favorable to the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated companies.
(c) GOOD REASON. During any Transition Period, for purposes of
this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position (including status,
titles and reporting requirements), authority, duties or responsibilities as
contemplated by Sections 5(a) or 12(a) of this Agreement, or any other action by
the Company which results in a diminution in such position, authority,
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duties or responsibilities, excluding for this purpose isolated, insubstantial
and inadvertent action(s) not taken in bad faith and remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any
of the provisions of Section 6 or Section 12(a) or (b) of this Agreement, other
than isolated, insubstantial and inadvertent failure(s) not occurring in bad
faith and remedied by the Company promptly after receipt of notice thereof given
by the Executive;
(iii) any termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(iv) any failure by the Company to comply with and
satisfy Section 16(a) of this Agreement.
For purposes of this Section 12(c), any good faith
determination of "Good Reason" made by the Executive shall be conclusive. A
termination by the Executive for any reason during the 30-day period immediately
following the date which is six months after any COC Transition Date shall be
deemed to be a termination for Good Reason for all purposes of this Agreement.
(d) COMPENSATION UPON TERMINATION FOR DISABILITY. If the
Executive's employment is terminated by reason of the Executive's Disability
during any Transition Period, then with respect to the provision of Other
Benefits, the term Other Benefits as utilized in Section 9(a) shall include, and
the Executive shall be entitled after the Disability Effective Date to receive,
disability and other benefits at least equal to the most favorable of those
generally provided by the Company and its affiliated companies to disabled
executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect generally
with respect to the most senior executives and their families at any time during
the 120-day period immediately preceding the latest COC Transition Date or, if
more favorable to the Executive and/or the Executive's family, as in effect at
any time thereafter generally with respect to other peer executives of the
Company and its affiliated companies and their families.
(e) COMPENSATION UPON TERMINATION BY DEATH. If the Executive's
death occurs during any Transition Period, then with respect to the provision of
Other Benefits, the term Other Benefits as utilized in Section 9(b) shall
include, without limitation, and the Executive's estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and its affiliated companies to the estates and
beneficiaries of the most senior executives of the Company and its affiliated
companies under such plans, programs, practices and policies relating to death
benefits, if any, as in effect with respect to the most senior executives and
their beneficiaries at any time during the 120-day period immediately preceding
the latest COC Transition Date or, if more favorable to the Executive's estate
and/or the Executive's beneficiaries, as in effect on the date of the
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Executive's death with respect to other peer executives of the Company and its
affiliated companies and their beneficiaries.
(f) COMPENSATION UPON TERMINATION BY THE COMPANY WITHOUT CAUSE
OR FOR GOOD REASON. If, during any Transition Period, the Company shall
terminate the Executive's employment other than for Cause or Disability or the
Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the aggregate of the
following amounts:
a. the sum of (1) the Executive's Annual
Base Salary through the Date of Termination to the extent not theretofore paid,
(2) the product of (x) the Applicable Bonus and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (3) any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses (1), (2), and (3)
shall be referred to in this Agreement as the "Accrued Obligations"); and
b. the amount equal to the product of (1)
two and (2) the sum of (x) the Executive's Annual Base Salary and (y) the
Highest Annual Bonus; and
c. an amount equal to the excess of (a) the
actuarial equivalent of the benefit under the Company's defined benefit
retirement plans, including any excess or supplemental retirement plan in which
the Executive participates (together, the "Retirement Plans") (utilizing
actuarial assumptions no less favorable to the Executive than those in effect
under the Retirement Plans immediately prior to the latest COC Transition Date),
which the Executive would receive if the Executive's employment continued for
two years after the Date of Termination assuming for this purpose that all
accrued benefits are fully vested, and, assuming that the Executive's
compensation in both of the two years is that required by Section 6(a) and
Section 6(b), over (b) the actuarial equivalent of the Executive's actual
benefit (paid or payable), if any, under the Retirement Plans as of the Date of
Termination; and
d. An amount equal to the then present value
of the lump sum sign-on bonus which would have been payable under Section
6(b)(i), less any portion thereof previously paid (using the prime rate of
interest as the applicable discount factor).
(ii) for two years after the Executive's Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue
benefits to the Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the plans, programs,
practices and policies described in Section 6(f) of this Agreement if the
Executive's employment had not been terminated or, if more favorable to the
Executive, as in effect generally
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at any time thereafter with respect to other peer executives of the Company and
its affiliated companies and their families, provided, however, that if the
Executive becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer provided plan, the
medical and other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of eligibility. For
purposes of determining eligibility (but not the time of commencement of
benefits) of the Executive for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to have
remained employed until two years after the Date of Termination and to have
retired on the last day of such period;
(iii) the Company shall, at its sole expense as
incurred, provide the Executive with outplacement services the scope and
provider of which shall be selected by the Executive in his sole discretion, and
which shall include the provision of reasonable office space and secretarial
assistance, provided, that the Company's responsibility under this clause (iii)
shall be limited to $30,000;
(iv) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall
be referred to in this Agreement as the "Other Benefits");
(v) the Company shall cause all Stock Options and
restricted shares of Company Stock held by or for the benefit of the Executive
to become immediately fully vested and/or exercisable; and
(vi) Alpine shall cause all stock options to purchase
shares of Alpine Stock held by or for the benefit of the Executive to become
immediately fully vested and/or exercisable.
13. LEGAL FEES.
(a) Following any termination of the Executive's employment
that gives rise to a right to payments and benefits under Section 12, the
Company shall pay as incurred, to the full extent permitted by law, all legal
fees and expenses which the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Code.
(b) Following any termination of the Executive's employment
other than a termination of employment described in paragraph (a), above, the
Company shall promptly
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reimburse the Executive, to the extent permitted by law, for all reasonable
legal fees and expenses reasonably incurred by the Executive as a result of any
contest by the Company or the Executive of the validity or enforceability of, or
liability under, any provisions of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the Executive about
the amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Code, provided, that such reimbursement shall be
limited to fees and expenses incurred in connection with the contest of issues
on which the Executive substantially prevails.
14. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or distribution by the Company 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 14) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Section 14(a), if it shall be
determined that the Executive is entitled to a Gross-Up Payment, but that the
Payments do not exceed 110% of the greatest amount (the "Reduced Amount") that
could be paid to the Executive such that the receipt of Payments would not give
rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive
and the Payments, in the aggregate, shall be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 14(c), all
determinations required to be made under this Section 14, 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 Arthur Andersen LLP or such other certified public accounting firm as may be
designated by the Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change of Control, the Executive shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 14, shall be paid by the Company to
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the Executive within 5 days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. 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 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 14(c) and the 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 promptly paid by the Company to or for the benefit of the
Executive.
(c) The 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 10 business days after the 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. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it 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 the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) 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,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) 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 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
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 14(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and
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may, at its sole option, either direct the Executive to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner, and the
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 Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and sue for a refund, the
Company shall advance the amount of such 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 such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, 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 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 Company pursuant to Section 14(c), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section 14(c))
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 the Executive of an amount advanced by the Company pursuant to
Section 14(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 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.
15. NONCOMPETITION.
(a) So long as the Executive is employed by the Company under
this Agreement and unless this Agreement is terminated for any reason, the
Executive agrees not to enter into competitive endeavors.
(b) During the Term and any period thereafter during which or
in respect of which the Executive receives payments from the Company under
Section 9 or Section 12, the Executive shall hold in a fiduciary capacity for
the benefit of the Company all secret or confidential information, knowledge or
data relating to the Company or any of its affiliated companies, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
After termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may otherwise
be required by law or legal process, communicate or divulge any
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such information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 15 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under Section 12 of this Agreement.
16. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of the Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as he would be entitled to hereunder if he terminated his
employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in the Agreement, Company shall mean the
Company as herein before defined and any successor to its business and/or assets
as aforesaid which executes and delivers the agreement provided for in this
Section 16 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devises and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued to live, all
such amounts unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devise, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
17. NOTICE. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive, to the address specified below the
Executive's name at the end of this Agreement.
If to the Company: Superior TeleCom Inc.
1790 Broadway
15th Floor
New York, NY 10019-1412
Attention: Chief Executive Officer
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or to such other address as any party may have furnished to
the others in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
18. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer of the Company as may be
authorized 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 set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of New York without regard to its conflicts of law principles.
19. VALIDITY. The invalidity or unenforceability of any provision or
provisions 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.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officers employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled, provided, however, that this Agreement should
not supersede any existing benefit or agreement which provides such benefit,
including, without limitation, life or disability insurance agreements and
retirement plans currently in effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
<TABLE>
<S> <C>
ATTEST: SUPERIOR TELECOM INC.
-------------------------- ----------------------------
Stewart H. Wahrsager, Esq. Steven S. Elbaum
Corporate Secretary Chairman and Chief Executive
Officer
ATTEST: EXECUTIVE
-------------------------- -----------------------------
Stewart H. Wahrsager, Esq. William F. Evans
Corporate Secretary
Address:______________________
______________________
</TABLE>
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