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Exhibit 10.4
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GLOBAL NETWORK TECHNOLOGY SERVICES, INC.
Change-in-Control Severance Benefit
Plan for Key Employees
Global Network Technology Services, Inc. (including any "Successor Entity"
as defined in Section 10, the "Company") adopts this plan (the "Plan") with the
intent of assuring that it and its direct and indirect subsidiaries (together
with the Company, the "Employer") will have the benefit of continuity of
management in the event of any actual or threatened change in control.
1. Eligibility. The Board of Directors of the Company (the "Board") or
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its designee shall from time to time designate participants in the Plan
("Participants") from among the Employer's key employees. An employee once
designated a Participant shall continue to be a Participant (subject to
satisfaction of the requirements set forth in Section 2 below) until the earlier
of (a) the date (not later than the 180th day preceding a "Change in Control" or
a "Cabletron Change in Control," both as hereinafter defined) on which the Board
determines that he or she is no longer eligible to participate in the Plan (as
evidenced by written notice thereof), and (b) the date he or she ceases to be
employed by the Employer (or by Cabletron Systems, Inc. ("Cabletron") and its
direct and indirect subsidiaries (together, the "Cabletron Companies"), in the
case of a Cabletron Change in Control); provided, that a Participant who ceases
to be employed by the Employer under circumstances giving rise to benefits under
the Plan shall continue to be treated as a Participant with respect to such
benefits until they have been paid or provided in full.
2. Agreement of Participants. As a precondition to participation in the
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Plan, each individual who is designated a Participant must enter into a written
agreement (each, a "Plan Agreement") in accordance with procedures prescribed by
and in a form acceptable to the Board. Each Plan Agreement shall contain:
(a) the Participant's binding commitment to the effect that once any
Person other than the Company, a direct or indirect subsidiary of the
Company, or an employee benefit plan of the Company or any such subsidiary
begins a tender or exchange offer or a solicitation of proxies from the
Company's security holders or takes other actions to effect a "Change in
Control" or a "Cabletron Change in Control," both as hereinafter defined,
the Participant will not voluntarily terminate his or her employment with
the Employer (or the Cabletron Companies, in the case of a Cabletron Change
in Control) until such Person has abandoned or terminated such efforts to
effect a Change in Control (or a Cabletron Change in Control) or until a
Change in Control (or a Cabletron Change in Control) has occurred (for
purposes of the Plan, a "Person" means any individual, entity or other
person, including a group within the meaning of Sections 13(d) or 14(d)(2)
of the Securities Exchange Act of 1934 ("Exchange Act")); and
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(b) such other terms, if any, as the Board may specify, which may (if
the Board so provides) deviate from the terms generally set forth in the
Plan.
As applied to any Participant, the term "Plan" means the terms and provisions of
the Plan set forth herein as modified by the terms and provisions of the
Participant's Plan Agreement.
3. Change in Control. For purposes of the Plan, a "Change in Control"
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shall be deemed to have occurred upon the occurrence of any of the events
described in subsections (a) or (b) below:
(a) Prior to the date, if any, on which Cabletron shall have
completed a distribution to the Cabletron stockholders of all of the shares
of the Company held by Cabletron, whether or not preceded by an initial
public offering of the Company's shares (a "spin-off"), Cabletron shall
sell or otherwise dispose of (including, without limitation, by merger) all
or substantially all of the stock of the Company that Cabletron owns, or
the Company shall sell or otherwise dispose of all or substantially all of
its assets, to an unrelated Person or to one or more unrelated Persons
acting as a group; provided that, for the avoidance of doubt, none of the
following shall constitute a Change in Control under this paragraph (a):
(i) a spin-off; (ii) a liquidation or merger of the Company into Cabletron
or into another subsidiary of Cabletron; (iii) any other reorganization of
the Company or other transaction that results in Cabletron's continuing to
own, directly or indirectly, a majority of the combined voting power of all
outstanding shares of stock or other equity interests of the Company or of
the entity resulting from such reorganization or other transaction; or (iv)
a disposition by Cabletron of stock of the Company, or by the Company of
its stock, in a public offering.
(b) Following a spin-off by Cabletron of the Company,
(i) any Person acquires beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (A) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (B) 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, that for purposes
of this subsection (b)(i) the following acquisitions shall not
constitute a Change in Control: (1) any acquisition directly from the
Company, (2) any acquisition by the Company, (3) any acquisition by an
employee benefit plan (or related trust) sponsored or maintained by
the Employer, or (4) any Business Combination (but except as provided
in subsection (iii) of this Section 3(b) a Business Combination may
nevertheless constitute a Change in Control under Section 3(b)(iii));
and provided further, that an acquisition by a Person of 30% or more
but less than 50% of the Outstanding Company Common Stock or of the
combined voting power of the Outstanding Company Voting Securities
shall not constitute a Change in Control under this subsection (b)(i)
if within 15 days of the Board's being advised that such ownership
level has been reached, a majority of the "Incumbent Directors" (as
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hereinafter defined) then in office adopt a resolution approving the
acquisition of that level of securities ownership by such Person; or
(ii) Individuals who, as of the first date following the spin-
off (the "Spin Date"), constituted the Board (the "Incumbent
Directors") cease for any reason to constitute at least a majority of
the Board; provided, that any individual who becomes a member of the
Board subsequent to the Spin Date and whose election or nomination for
election was approved by a vote of at least two-thirds of the
Incumbent Directors shall be treated as an Incumbent Director unless
he or she assumed office as a result of an actual or threatened
election contest with respect to the election or removal of directors;
or
(iii) There is consummated a reorganization, merger or
consolidation involving the Company, or a sale or other disposition of
all or substantially all of the assets of the Company (a "Business
Combination"), in each case unless, following such Business
Combination, (A) the Persons who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and of the
combined voting power of the Outstanding Company Voting Securities
immediately prior to the Business Combination beneficially own,
directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and 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 entity resulting
from such Business Combination in substantially the same proportions
as their ownership immediately prior to such Business Combination of
the Outstanding Company Common Stock and of the combined voting power
of the Outstanding Company Voting Securities, as the case may be, (B)
no Person (excluding any entity resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Employer or of such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 30% 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 entitled to vote generally in the election of directors,
except to the extent that such ownership existed prior to the Business
Combination and (C) at least a majority of the members of the Board
resulting from such Business Combination were Incumbent Directors at
the time of the execution of the initial agreement, or of the action
of the Board, providing for such Business Combination; or
(iv) The stockholders of the Company approve a complete
liquidation or dissolution of the Company.
4. Severance Benefit. If, during the period of eighteen (18) months
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following a Change in Control, either (i) the employment of a Participant is
terminated by the Employer for any reason other than for "Cause" (as defined in
Section 7 below), or (ii) the Participant terminates his or her employment with
the Employer for "Good Reason" (as defined in Section 8 below):
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(a) The Company shall pay to the Participant in cash, within five (5)
days of the date of termination, the sum of (i) all salary earned by the
Participant as of the date of termination but not yet paid, (ii) the
Participant's accrued vacation earned through the date of termination, and
(iii) an amount equal to the Participant's target incentive bonus, if any,
for the fiscal year in which termination occurs, multiplied times a
fraction, the numerator of which is the number of days elapsed between the
beginning of such year and the date of termination reduced by any periods
(expressed in days) for which amounts under such incentive bonus
arrangement have already been paid in such year and the denominator of
which is 365.
(b) The Company shall also pay to the Participant in cash, within ten
(10) days of the date of termination, the sum of the Participant's Base
Salary and Bonus. "Base Salary" for this purpose means the Participant's
annual rate of base salary as determined immediately prior to the date of
termination (or, if higher, his or her annual rate of base salary as
determined immediately prior to the Change in Control), and "Bonus" means
the highest aggregate amount of bonus or incentive compensation paid in
cash to the Participant (or that would have been so paid absent deferral)
by the Company (or Cabletron) for any one of the three most recent fiscal
years ended prior to such termination (or, if higher, the Participant's
target incentive bonus for the fiscal year in which the Change in Control
occurs).
(c) The Participant, together with his or her dependents, will
continue for the duration of the "coverage continuation period" (as
hereinafter defined) to be eligible to participate at the Employer's
expense (subject to any applicable waiting periods or similar requirements
to the extent such requirements had not been satisfied prior to the date of
termination, and subject to the payment by the Participant or his or her
dependents of premiums, co-pays or similar amounts at rates not greater
than those applicable immediately prior to the Change in Control to active
employees and their dependents) in all medical, dental and life insurance
plans or programs maintained or sponsored by the Employer immediately prior
to the Change in Control; provided, that if such continued participation is
impracticable, the Company may provide the Participant with the full value
of the cost of such coverage paid promptly in cash. For purposes of this
subsection, the "coverage continuation period" means the one (1) year
period following the Participant's termination of employment; provided,
that if the plan or program in question, or applicable law, provides for a
longer period of coverage following termination of employment, such longer
period shall constitute the "coverage continuation period" with respect to
that plan or program. If the coverage continuation period with respect to a
plan or program exceeds one (1) year following the Participant's
termination of employment, the terms and conditions of coverage following
the first-year anniversary of the date of the Participant's termination of
employment shall be as set forth in the plan or program or as prescribed by
applicable law. Notwithstanding the foregoing provisions of this
subsection, if the Participant becomes reemployed by another employer and
is eligible (together with his or her dependents) for medical, dental or
life insurance coverage that is substantially equivalent to the coverage of
the same type that he or she (and his or her dependents) were entitled to
receive under this subsection, the
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Employer's obligation to the Participant and his or her dependents under
this subsection shall cease with respect to that type of coverage.
(d) Each Company stock option or other stock-based award held by the
Participant prior to the Change in Control (an "affected award") shall be
vested (and, in the case of an award requiring exercise, exercisable)
(vesting and exercisability of such awards being referred to for purposes
of this subsection (d), without distinction, as "vesting"), immediately
prior to the termination of employment, for the "applicable number of
shares" as hereinafter defined. In the event a Participant holds an
affected award requiring exercise, the Company shall give the Participant
adequate notice and opportunity to exercise any portion of the affected
award that becomes exercisable by reason of this subsection. For purposes
of this subsection (d), the term "applicable number of shares" means, in
the case of any award, that number of shares for which the award, but for
the operation of any limitation deferring scheduled vesting until the date
of a spin-off, would have been vested by the end of the seven (7) month
period following the termination of employment had the Participant holding
the award immediately prior to the termination of employment continued in
service during such seven (7) month period.
5. Cabletron Change in Control. For purposes of the Plan, a "Cabletron
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Change in Control" shall be deemed to have occurred upon the occurrence, prior
to the earlier of a spin-off by Cabletron of the Company or a Change in Control
described in Section 3(a) above, of any of the events described in subsections
(a), (b), (c) and (d) below:
(a) Any Person acquires beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (i)
the then outstanding shares of common stock of Cabletron (the "Outstanding
Cabletron Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of Cabletron entitled to vote generally in
the election of directors (the "Outstanding Cabletron Voting Securities");
provided, that for purposes of this subsection (a) the following
acquisitions shall not constitute a Cabletron Change in Control: (A) any
acquisition directly from Cabletron, (B) any acquisition by Cabletron, (C)
any acquisition by an employee benefit plan (or related trust) sponsored or
maintained by Cabletron or its subsidiary, or (D) any Cabletron Business
Combination (but except as provided in subsection (c) of this Section 3 a
Cabletron Business Combination may nevertheless constitute a Cabletron
Change in Control under that subsection); and provided further, that an
acquisition by a Person of 30% or more but less than 50% of the Outstanding
Cabletron Common Stock or of the combined voting power of the Outstanding
Cabletron Voting Securities shall not constitute a Cabletron Change in
Control under this subsection (a) if within 15 days of being advised that
such ownership level has been reached, a majority of the "Incumbent
Directors" (as hereinafter defined) then in office adopt a resolution
approving the acquisition of that level of securities ownership by such
Person; or
(b) Individuals who, as of the Effective Date of this Plan,
constituted the Cabletron Board of Directors (the "Cabletron Incumbent
Directors") cease for any reason to
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constitute at least a majority of the Board; provided, that any individual
who becomes a member of the Cabletron Board of Directors subsequent to the
Effective Date of this Plan and whose election or nomination for election
was approved by a vote of at least two-thirds of the Incumbent Directors
shall be treated as a Cabletron Incumbent Director unless he or she assumed
office as a result of an actual or threatened election contest with respect
to the election or removal of directors; or
(c) There is consummated a reorganization, merger or consolidation
involving Cabletron, or a sale or other disposition of all or substantially
all of the assets of Cabletron (a "Cabletron Business Combination"), in
each case unless, following such Cabletron Business Combination, (i) the
Persons who were the beneficial owners, respectively, of the Outstanding
Cabletron Common Stock and of the combined voting power of the Outstanding
Cabletron Voting Securities immediately prior to the Cabletron Business
Combination beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and 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 entity
resulting from such Cabletron Business Combination in substantially the
same proportions as their ownership immediately prior to such Cabletron
Business Combination of the Outstanding Cabletron Common Stock and of the
combined voting power of the Outstanding Cabletron Voting Securities, as
the case may be, (ii) no Person (excluding any entity resulting from such
Cabletron Business Combination or any employee benefit plan (or related
trust) of Cabletron or its subsidiary or of such corporation resulting from
such Cabletron Business Combination) beneficially owns, directly or
indirectly, 30% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Cabletron Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election
of directors, except to the extent that such ownership existed prior to the
Cabletron Business Combination and (iii) at least a majority of the members
of the Cabletron Board of Directors resulting from such Cabletron Business
Combination were Cabletron Incumbent Directors at the time of the execution
of the initial agreement, or of the action of the Cabletron Board of
Directors, providing for such Cabletron Business Combination; or
(d) The stockholders of Cabletron approve a complete liquidation or
dissolution of Cabletron.
6. Cabletron-related Severance Benefit. If, in the eighteen (18) months
following a Cabletron Change in Control, either (i) the employment of a
Participant is terminated by the Cabletron Companies for any reason other than
for "Cause" (as defined in Section 7 below), or (ii) the Participant terminates
his or her employment with the Cabletron Companies for "Good Reason" (as defined
in Section 8 below):
(a) The Company shall pay to the Participant in cash, within five (5)
days of the date of termination, the sum of (i) all salary earned by the
Participant as of the date of termination but not yet paid, (ii) the
Participant's accrued vacation earned through the
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date of termination, and (iii) an amount equal to the Participant's target
incentive bonus, if any, for the fiscal year in which termination occurs,
multiplied times a fraction, the numerator of which is the number of days
elapsed between the beginning of such year and the date of termination
reduced by any periods (expressed in days) for which amounts under such
incentive bonus arrangement have already been paid in such year and the
denominator of which is 365.
(b) The Company shall pay to the Participant in cash, within ten (10)
days of the date of termination, the sum of the Participant's Base Salary
and Bonus. "Base Salary" for this purpose means the Participant's annual
rate of base salary as determined immediately prior to the date of
termination (or, if higher, his or her annual rate of base salary as
determined immediately prior to the Cabletron Change in Control), and
"Bonus" means the highest aggregate amount of bonus or incentive
compensation paid in cash to the Participant (or that would have been so
paid absent deferral) by the Company (or Cabletron) for any one of the
three most recent fiscal years ended prior to such termination (or, if
higher, the Participant's target incentive bonus for the fiscal year in
which the Cabletron Change in Control occurs).
(c) The Participant, together with his or her dependents, will
continue for the duration of the "coverage continuation period" (as
hereinafter defined) to be eligible to participate at the Employer's
expense (subject to any applicable waiting periods or similar requirements
to the extent such requirements had not been satisfied prior to the date of
termination, and subject to the payment by the Participant or his or her
dependents of premiums, co-pays or similar amounts at rates not greater
than those applicable immediately prior to the Cabletron Change in Control
to active employees and their dependents) in all medical, dental and life
insurance plans or programs maintained or sponsored by the Employer
immediately prior to the Cabletron Change in Control; provided, that if
such continued participation is impracticable, the Company may provide the
Participant with the full value of the cost of such coverage paid promptly
in cash. For purposes of this subsection, the "coverage continuation
period" means the one (1) year period following the Participant's
termination of employment; provided, that if the plan or program in
question, or applicable law, provides for a longer period of coverage
following termination of employment, such longer period shall constitute
the "coverage continuation period" with respect to that plan or program. If
the coverage continuation period with respect to a plan or program exceeds
one (1) year following the Participant's termination of employment, the
terms and conditions of coverage following the first-year anniversary of
the date of the Participant's termination of employment shall be as set
forth in the plan or program or as prescribed by applicable law.
Notwithstanding the foregoing provisions of this subsection, if the
Participant becomes reemployed by another employer and is eligible
(together with his or her dependents) for medical, dental or life insurance
coverage that is substantially equivalent to the coverage of the same type
that he or she (and his or her dependents) were entitled to receive under
this subsection, the Employer's obligation to the Participant and his or
her dependents under this subsection shall cease with respect to that type
of coverage.
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(d) Each Company stock option or other stock-based award held by the
Participant prior to the Cabletron Change in Control (an "affected award")
shall be vested (and, in the case of an award requiring exercise,
exercisable) (vesting and exercisability of such awards being referred to
for purposes of this subsection (d), without distinction, as "vesting"),
immediately prior to the termination of employment, for the "applicable
number of shares" as hereinafter defined. In the event the Participant
holds an affected award requiring exercise, the Company shall give the
Participant adequate notice and opportunity to exercise any portion of the
affected award that becomes exercisable by reason of this subsection. For
purposes of this subsection (d), the term "applicable number of shares"
means, in the case of any award, that number of shares for which the award,
but for the operation of any limitation deferring scheduled vesting until
the date of a spin-off, would have been vested by the end of the twelve
(12) month period following the termination of employment had the
Participant holding the award immediately prior to the termination of
employment continued in service during such twelve (12) month period.
For purposes of this Section 6, a termination of a Participant's employment with
the Cabletron Companies shall not be deemed to have occurred solely by reason of
the fact that the Company ceases to be a direct or indirect subsidiary of
Cabletron, but a termination of a Participant's employment by the Company (other
than for "Cause"), or a termination by a Participant of his or her employment
with the Company for "Good Reason," in either case occurring within eighteen
(18) months following a Cabletron Change in Control, shall be treated as a
termination described in the first sentence of this Section 6 whether or not, at
the time of such termination, the Company is still a direct or indirect
subsidiary of Cabletron.
7. Cause. "Cause" means only: (a) the Participant's conviction of, or a
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plea of nolo contendere with respect to, a crime involving moral turpitude or a
felony; (b) the Participant's refusal to perform, or gross negligence in the
performance of, his or her duties to the Employer; or (c) an act of willful
misfeasance by the Participant that is intended to result in substantial
personal enrichment of the Participant at the expense of the Employer.
8. Voluntary Termination for Good Reason. A Participant shall be deemed
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to have voluntarily terminated his or her employment for Good Reason if he or
she leaves the employ of the Employer (or the Cabletron Companies, in the case
of a Cabletron Change in Control) for any of the following reasons:
(a) Any action by the Company which results in a material diminution
in Participant's position, authority, duties or responsibilities
immediately prior to the Change in Control (or Cabletron Change in
Control), excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Participant;
provided, however, that a sale or transfer of some or all of the business
of the Company or any of its subsidiaries or other reduction in its
business or that of its subsidiaries, or the fact that the Company shall
become a subsidiary of another company or the securities of the Company
shall no longer be publicly traded, shall not constitute "Good Reason"
hereunder; or
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(b) Any reduction in the Participant's rate of annual base salary for
any fiscal year to less than the greater of 100% of the rate of annual base
salary paid to him or her in the completed fiscal year immediately
preceding the Change in Control (or Cabletron Change in Control) or 100% of
the rate at which annual base salary was being paid to the Participant
immediately prior to such reduction; or
(c) Any failure of the Company to continue or cause to be continued
in effect any retirement, life, medical, dental, disability, accidental
death or travel insurance plan in which the Participant was participating
immediately prior to the Change in Control (or Cabletron Change in Control)
unless the Company provides the Participant with a plan or plans that
provide substantially equivalent benefits, or the taking of any action by
the Employer that would adversely effect the Participant's participation in
or materially reduce the Participant's benefits under any such plan or
deprive the Participant of any material fringe benefit enjoyed by the
Participant immediately prior to the Change in Control (or Cabletron Change
in Control), other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the Employer promptly
after receipt of notice thereof given by the Participant; or
(d) The Company requires the Participant to be based at any office or
location that is more than 50 miles distant from the Participant's base
office or work location immediately prior to the Change in Control (or
Cabletron Change in Control).
9. Certain Tax-Related Payments.
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(a) If any "payment in the nature of compensation" (hereinafter
"Payment") as that term is used in Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), including but not limited to
payments and benefits under the Plan (other than payments pursuant to this
Section 9) and any "Cabletron CIC program" (as defined in Section 14
below), made with respect to a Participant is determined to be subject to
the excise tax imposed by Section 4999 of the Code (the "Section 4999
tax"), the Company will pay to such Participant an additional amount in
cash (the "Gross-Up Payment") which, after reduction for all taxes
(including, but not limited to, the Section 4999 tax with respect to such
Additional Amount), is sufficient to pay the Section 4999 tax and all
related interest and penalties, if any, with respect to the Payment. All
determinations under this Section shall be made at the Company's expense by
a nationally recognized accounting firm selected by the Company.
(b) If there is a determination by the Internal Revenue Service (the
"IRS") with respect to the Participant that is inconsistent with a
determination pursuant to Section 9(a) and that if sustained would result
in a Section 4999 tax (or a greater Section 4999 tax) or in interest or
penalties (or increased interest or penalties) with respect to any such tax
(an "initial IRS determination"), the determination under Section 9(a)
shall be deemed automatically modified to conform to the initial IRS
determination and the Company, upon receipt from the IRS of the initial IRS
determination or of written notice from the Participant setting forth the
initial IRS determination, shall promptly pay to the
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Participant the additional Gross-Up Payment required by such modification
(the "Additional Gross-Up Payment"). The Company may elect to contest at
its expense any initial IRS determination in respect of which the Company
has made an Additional Gross-Up Payment, in which case such Additional
Gross-Up Payment shall be considered an interest-free loan (the "Loan") to
Participant until such time as the IRS' determination is withdrawn or
modified or otherwise becomes final (a "final IRS determination"). Upon a
final IRS determination that is no longer subject to modification or
judicial review and that results in a Section 4999 tax and related interest
and penalties lower than those in respect of which the Additional Gross-Up
Payment was made, the Participant shall repay to the Company so much of the
Loan, if any, as shall leave the Participant on an after-tax basis in the
same position he or she would have been in had the initial IRS
determination never been made. The Participant shall cooperate reasonably
with the Company in any effort by the Company to contest an IRS
determination under this paragraph, including by the making of such filings
and appeals as the Company may reasonably require, but nothing herein shall
be construed as requiring Participant to bear any cost or expense of such a
contest or in connection therewith to compromise any tax item (including
without limitation any deduction or credit) other than the Section 4999 tax
and related interest and penalties, if any, that are the subject of the
contested IRS determination.
10. Binding Effect on Successor Entity. If the Company is merged or
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consolidated into or with any other entity (whether or not the Company is the
surviving entity), or if substantially all of the assets of the Company are
transferred to another entity, the provisions of the Plan will be binding upon
and inure to the benefit of the entity resulting from such merger or
consolidation or the acquirer of such assets (the "Successor Entity"). The
Company will require any such Successor Entity to assume expressly and agree to
perform the provisions of the Plan (including any Plan Agreements) in the same
manner and to the same extent that the Company would have been required to
perform if no such transaction had taken place.
11. Payment Obligations Absolute. Upon termination of employment
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described in Section 4 or 6, the Company's obligations to pay the Severance
Benefits described in Section 4 or 6 shall be absolute and unconditional and
shall not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Employer may
have against any Participant. In no event shall a Participant be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to a Participant under any of the provisions of the Plan and,
except as otherwise provided in Section 4(c) or 6(c), in no event shall the
amount of any payment hereunder be reduced by any compensation earned by a
Participant as a result of employment by another employer.
12. Limited Effect. Nothing herein or in any Plan Agreement shall be
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construed as giving any Participant a right of continued employment or as
limiting the Employer's right to terminate a Participant's employment, subject,
in the case of any such termination described in Section 4 or 6, to the payment
of the benefits described in Section 4 or 6.
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13. Amendment and Termination. The Board may amend the Plan at any time
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and from time to time, and may terminate the Plan at any time; provided, that no
action purporting to amend or terminate the Plan that is approved by the Board
within the one hundred eighty (180) day period immediately preceding a Change in
Control (or a Cabletron Change in Control) and that, if effective, would
adversely affect the rights of any Participant hereunder, shall affect the
rights of such Participant without his or her express written consent.
14. No Duplication of Benefits. For the avoidance of doubt and
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notwithstanding any provision of the Plan to the contrary, under no
circumstances shall a Participant be entitled to receive cash severance benefits
under both Section 4(a), (b), and (c) and Section 6(a), (b), and (c). In any
case in which the Plan might otherwise be construed to entitle a Participant to
receive cash severance benefits under both such sets of provisions, the
Participant shall be entitled to receive cash severance benefits only under
Section 4(a), (b), and (c). Also, the benefits and rights to benefits under this
Plan are in lieu of any and all benefits (other than the acceleration of stock
options) that may become due a Participant under any change in control plan or
program of Cabletron (any such plan or program, a "Cabletron CIC program"), and
each Participant, for himself or herself and his or her heirs, beneficiaries and
assigns, hereby expressly waives and relinquishes any right that he or she may
have to any such benefits under any Cabletron CIC program. Notwithstanding the
preceding sentence, a Participant does not hereby waive any right or entitlement
to the acceleration of stock option awards to the extent such acceleration may
be provided under any Cabletron CIC program.
15. Withholding. All payments and benefits hereunder shall be subject to
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reduction for applicable tax withholdings.
16. Indemnification. The Employer agrees to pay all costs and expenses
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incurred by any Participant in connection with efforts to enforce his or her
rights under this Plan and will indemnify and hold harmless any Participant from
and against any damages, liabilities and expenses (including without limitation
reasonable fees and expenses of counsel) incurred by the Participant in
connection with any litigation or threatened litigation, including any
regulatory proceedings, arising out of the making, performance or enforcement of
this Plan.
17. Source of Payment. Nothing herein shall be construed as establishing
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a trust or as requiring the Company to set aside funds to meet its obligations
hereunder. Notwithstanding the foregoing, if the Board in its discretion so
determines the Company may establish a so-called "rabbi trust" or similar
arrangement to assist it in meeting any such obligations that it may have.
18. Effective Date. The "Effective Date" of the Plan shall be the date on
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which it is adopted by the Board.
19. Governing Law. The Plan and agreements made with Participants
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hereunder shall be governed by the laws of the State of New Hampshire.
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