EXHIBIT 10w
AGREEMENT
AGREEMENT by and between ▇. ▇. ▇▇▇▇, INC., a New Jersey
corporation (the "Corporation"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the
"Executive"), dated as of the 11th day of March, 1996.
WHEREAS, the Corporation, on behalf of itself and its
shareholders, wishes to assure that the Corporation will have the
continued dedication of the Executive, notwithstanding the
possibility, threat, or occurrence of a Change of Control (as
defined below) of the Corporation. The Board of Directors of the
Corporation (the "Board") believes it is imperative to diminish
the inevitable distraction of the Executive by virtue of the
personal uncertainties and risks created by a pending or
threatened Change of Control, to encourage his attention and
dedication to his assigned duties currently and in the event of
any threatened or pending Change of Control, and to provide the
Executive with competitive compensation arrangements; therefore,
the Board has caused the Corporation to enter into this Agreement
(i) to ensure the Executive of individual financial security in
the event of a Change of Control, and (ii) to provide such
protection in a manner which is competitive with that of other
corporations.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. (a) The "Effective Date"
shall be the first date during the "Change of Control Period" (as
defined in Section l(b)) on which a Change of Control occurs.
Anything in this Agreement to the contrary notwithstanding, if
the Executive's employment with the Corporation is terminated
prior to the date on which a Change of Control occurs, and the
Executive can reasonably demonstrate that such termination (1)
was at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control or (2)
otherwise arose in connection with or anticipation of a Change of
Control, then for all purposes of this Agreement the "Effective
Date" shall mean the date immediately prior to the date of such
termination.
(b) The "Change of Control Period" is the period
commencing on the date hereof and ending on the earlier to occur
of (i) the third anniversary of such date or (ii) the first day
of the month next following the Executive's normal retirement
date ("Normal Retirement Date") under the Corporation's
retirement plan; provided, however, that commencing on the date
one year after the date hereof, and on each annual anniversary of
such date (such date and each annual anniversary thereof is
hereinafter referred to as the "Renewal Date"), the Change of
Control Period shall be automatically extended so as to terminate
on the earlier of (x) two years from such Renewal Date or (y) the
first day of the month coinciding with or next following the
Executive's Normal Retirement Date, unless at least 60 days prior
to the Renewal Date the Corporation shall give notice that the
Change of Control Period shall not be so extended.
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2. Change of Control. (a) For purposes of this
Agreement, a "Change of Control" shall be deemed to have occurred
if a change of control of the nature that would be required to be
reported in response to Item 1(a) of the Current Report on Form
8-K as in effect on the date hereof pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
occurs, provided that, without limitation, a "Change of Control"
shall be deemed to have occurred if (i) the beneficial ownership
at any time hereafter by any person, as defined herein, of
capital stock of the Corporation, constitutes 20 percent or more
of the general voting power of all of the Corporation's
outstanding capital or (ii) individuals who, as of the date
hereof, constitute the Board (as of the date hereof, the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a
Director subsequent to the date hereof whose election, or
nomination for election by the Corporation's shareholders, was
approved by a vote of at least three-quarters of the Directors
comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is
in connection with an actual or threatened election contest
relating to the election of the Directors of the Corporation, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent
Board. No sale to underwriters or private placement of its
capital stock by the Corporation, nor any acquisition initiated
by the Corporation, through merger, purchase of assets or
otherwise, effected in whole or in part by issuance or reissuance
of shares of its capital stock, shall constitute a Change of
Control.
(b) For purposes of the definition of "Change of
Control", the following definitions shall be applicable:
(i) The term "person" shall mean any individual,
corporation or other entity and any group as such term is
used in Section 13(d)(3) or 14(d)(2) of the Exchange Act.
(ii) Any person shall be deemed to be the beneficial
owner of any shares of capital stock of the Corporation:
A. which that person owns directly, whether or
not of record, or
B. which that person has the right to acquire
pursuant to any agreement or understanding or upon
exercise of conversion rights, warrants, or options, or
otherwise, or
C. which are beneficially owned, directly or
indirectly (including shares deemed owned through
application of clause (B) above), by an "affiliate" or
"associate" (as defined in the rules of the Securities
and Exchange Commission under the Securities Act of
1933, as amended) of that person, or
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D. which are beneficially owned, directly or
indirectly (including shares deemed owned through
application of clause (B) above), by any other person
with which that person or his "affiliate" or
"associate" (defined as aforesaid) has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of capital
stock of the Corporation.
(iii) The outstanding shares of capital stock of the
Corporation shall include shares deemed owned through
application of clauses (ii) (B), (C) and (D), above, but
shall not include any other shares which may be issuable
pursuant to any agreement or upon exercise of conversion
rights, warrants or options, or otherwise, but which are not
actually outstanding.
(iv) Shares of capital stock, if any, held by The
Chase Manhattan Bank N.A. under the Indenture and the Escrow
Agreement dated as of November 1, 1971 between International
Paper Corporation and said bank shall not be deemed owned by
International Paper Corporation or by said bank for purposes
of this definition, so long as they are held by said bank
under said Escrow Agreement, but said shares shall be deemed
outstanding for the purpose of determining the aggregate
number of outstanding shares of capital stock of the
Corporation.
3. Employment Period. The Corporation hereby agrees
to continue the Executive in its employ, and the Executive hereby
agrees to remain in the employ of the Corporation, for the period
commencing on the Effective Date and ending on the earlier to
occur of (a) the third anniversary of such date or (b) the first
day of the month coinciding with or next following the
Executive's Normal Retirement Date (the "Employment Period").
4. Terms of Employment. (a) Position and Duties.
(i) During the Employment Period, (A) 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
90-day period immediately preceding the Effective Date and (B)
the Executive's services shall be performed at the location where
the Executive was employed immediately preceding the Effective
Date or any office or location less than thirty-five (35) miles
from such location.
(ii) During the Employment Period, and excluding
any periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention and
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time during normal business hours to the business and affairs of
the Corporation 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 Employment Period
it shall not be a violation of this Agreement for the Executive
to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (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 Corporation in accordance
with this Agreement. It is expressly understood and agreed that
to the extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature
and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Corporation.
(b) Compensation. (i) Base Salary. During the
Employment Period, the Executive shall receive a base salary
("Base Salary") at a monthly rate at least equal to the highest
monthly base salary paid to the Executive by the Corporation
during the twelve-month period immediately preceding the month in
which the Effective Date occurs. During the Employment Period,
the Base Salary shall be reviewed at least annually and shall be
increased at any time and from time to time as shall be
consistent with increases in base salary awarded in the ordinary
course of business to other key executives of the Corporation.
Any increase in Base Salary shall not serve to limit or reduce
any other obligation to the Executive under this Agreement. Base
Salary shall not be reduced after any such increase.
(ii) Annual Bonus. In addition to Ease Salary,
the Executive shall be awarded, for each fiscal year during the
Employment Period, an annual bonus (an "Annual Bonus") in cash at
least equal to the average bonus received by the Executive from
the Corporation in respect of the three fiscal years immediately
preceding the fiscal year in which the Effective Date occurs.
(iii) Incentive, Savings and Retirement Plans.
In addition to Base Salary and Annual Bonus payable as
hereinabove provided, the Executive shall be entitled to
participate during the Employment Period in all incentive,
savings and retirement plans and programs, whether qualified or
non-qualified, then applicable to other key executives of the
Corporation and its affiliates (including the Corporation's 1981
Stock Option Plan, the Long-Term Performance Incentive Plan, the
1986 Stock Award Plan, the 1981 Employee Stock Appreciation
Rights Plan, the Employees' Stock Ownership Plan and the
Employees' Retirement Savings Plan, in each case to the extent
then in effect or as subsequently amended); provided, however,
that such plans and programs, in the aggregate, shall provide the
Executive with compensation, benefits and reward opportunities at
least as favorable as the most favorable such compensation
benefits and reward opportunities provided by the Corporation for
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the Executive under such plans and programs as in effect at any
time during the 90-day period immediately preceding the Effective
Date or, if more favorable to the Executive, as provided at any
time thereafter with respect to other key executives.
(iv) Welfare Benefit Plans. During the
Employment Period, 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 provided
by the Corporation (including, without limitation, medical,
prescription, dental, disability, salary continuance, executive
life, group life, accidental death and travel accident insurance
plans and programs), at least comparable to those in effect at
any time during the 90-day period immediately preceding the
Effective Date which would be most favorable to the Executive or,
if more favorable to the Executive, as in effect at any time
thereafter with respect to other key executives.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the most favorable policies and procedures of the
Corporation and its affiliates in effect at any time during the
90-day period immediately preceding the Effective Date or, if
more favorable to the Executive, as in effect at any time
thereafter with respect to other key executives.
(vi) Fringe Benefits. During the Employment
Period, the Executive shall be entitled to fringe benefits, in
accordance with the most favorable policies of the Corporation
and its affiliates in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect at any time thereafter with respect
to other key executives.
(vii) Office and Support Staff. During the
Employment Period, the Executive shall be entitled to an office
or offices of a size and with furnishings and other appointments,
and to secretarial and other assistance, at least equal to those
provided to the Executive at any time during the 90-day period
immediately preceding the Effective Date which would be most
favorable to the Executive or, if more favorable to the
Executive, as provided at any time thereafter with respect to
other key executives.
(viii) Vacation. During the Employment Period,
the Executive shall be entitled to paid vacation in accordance
with the most favorable policies of the Corporation and its
affiliates as in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect at any time thereafter with respect
to other key executives.
5. Termination. (a) Death or Disability. This
Agreement shall terminate automatically upon the Executive's
death. The Corporation may terminate this Agreement, after
having established the Executive's Disability (pursuant to the
definition of "Disability" set forth below), by giving to the
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Executive written notice of its intention to terminate the
Executive's employment. In such a case, the Executive's
employment with the Corporation shall terminate effective on the
180th day after receipt of such notice (the "Disability Effective
Date"), provided that, within 180 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"
means disability which, at least 26 weeks after its commencement,
is determined to be total and permanent by a physician selected
by the Corporation or its insurers and acceptable to the
Executive or the Executive's legal representative (such agreement
as to acceptability not to be withheld unreasonably).
(b) Cause. The Corporation may terminate the
Executive's employment for "Cause." For purposes of this
Agreement, "Cause" means (i) an act or acts of dishonesty taken
by the Executive and intended to result in substantial personal
enrichment of the Executive at the expense of the Corporation,
(ii) repeated violations by the Executive of the Executive's
obligations under Section 4(a) of this Agreement which are
demonstrably willful and deliberate on the Executive's part and
which are not remedied after the receipt of notice from the
Corporation or (iii) the conviction of the Executive of a felony.
(c) Termination by Executive for Good Reason. The
Executive's employment may be terminated by the Executive for
Good Reason. For purposes of this Agreement, "Good Reason" means
(i) (A) the assignment to the Executive of any
duties inconsistent in any respect with the Executive's
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or (B) any
other action by the Corporation which results in a
diminution in such position, authority, duties or
responsibilities, other than an insubstantial and
inadvertent action which is remedied by the Corporation
promptly after receipt of notice thereof given by the
Executive;
(ii) any failure by the Corporation to comply with
any of the provisions of Section 4(b) of this Agreement,
other than an insubstantial and inadvertent failure which is
remedied by the Corporation promptly after receipt of notice
thereof given by the Executive;
(iii) the Corporation's requiring the Executive to be
based at any office or location other than that described in
Section 4(a)(i)(B) hereof, except for travel reasonably
required in the performance of the Executive's
responsibilities;
(iv) any purported termination by the Corporation of
the Executive's employment otherwise than as permitted by
this Agreement; or
IV-26
(v) any failure by the Corporation to comply with
and satisfy Section 11(c) of this Agreement.
Anything in this Agreement to the contrary
notwithstanding, any termination by the Executive for any reason
whatsoever during the six month period immediately following the
first anniversary of the date of a Change of Control shall be a
termination for "Good Reason". For purposes of this Section
5(c), any good faith determination of "Good Reason" made by the
Executive shall be conclusive.
(d) Notice of Termination. Any termination by the
Corporation for Cause or by the Executive for Good Reason shall
be communicated by Notice of Termination to the other party
hereto given in accordance with Section 12(b) of this Agreement.
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) 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 termination date is other
than the date of receipt of such notice, specifies the
termination date (which date shall be not more than fifteen (15)
days after the giving of such notice).
(e) Date of Termination. "Date of Termination" means
the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be. If the Executive's
employment is terminated by the Corporation other than for Cause
or Disability, the Date of Termination shall be the date on which
the Corporation notifies the Executive of such termination.
6. Obligations of the Corporation upon Termination.
(a) Death. If the Executive's employment is terminated by
reason of the Executive's death, this Agreement shall terminate
without further obligations to the Executive's legal
representatives under this Agreement, other than those
obligations accrued or earned by the Executive hereunder at the
date of the Executive's death. Anything in this Agreement to the
contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to the most favorable
benefits provided by the Corporation to surviving families of
executives of the Corporation under such plans, programs and
policies relating to family death benefits, if any, as in effect
at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the
Executive's family, as in effect on the date of the Executive's
death with respect to other key executives and their families.
(b) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability, this
Agreement shall terminate without further obligations to the
Executive, other than those obligations accrued or earned by the
Executive hereunder as of the Disability Effective Date.
Anything in this Agreement to the contrary notwithstanding, 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 provided by the Corporation to disabled
IV-27
employees and/or their families in accordance with such plans,
programs and policies relating to disability, if any, as in
effect at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Executive and/or
the Executive's family, as in effect at any time thereafter with
respect to other key executives and their families.
(c) Cause; Other than for Good Reason. If the
Executive's employment shall be terminated for Cause or the
Executive terminates his employment other than for Good Reason,
the Corporation shall pay the Executive his full Base Salary
through the Date of Termination at the rate in effect at the time
Notice of Termination is given and shall have no further
obligations to the Executive under this Agreement.
(d) Termination by Executive for Good Reason;
Termination by Corporation Other Than for Cause or Disability.
If, during the Employment Period, the Corporation shall terminate
the Executive's employment other than for Cause or Disability, or
the employment of the Executive shall be terminated by the
Executive for Good Reason:
(i) the Corporation shall pay to the Executive in a
lump sum in cash within 10 days after the Date of
Termination (the "Payment Date") the aggregate of the
following amounts:
A. to the extent not theretofore paid, the
Executive's Base Salary through the Date of Termination
at the rate in effect on the Date of Termination or, if
higher, at the highest rate in effect at any time
within the three year period preceding the Effective
Date (the "Highest Base Salary"); and
B. the product of (x) the average of the annual
bonuses paid, or payable to the extent deferred, to the
Executive for the three full fiscal years prior to the
Effective Date (the "Recent Bonus") and (y) the
fraction obtained by dividing (i) the number of days
between the Date of Termination and the last day of the
last full fiscal year and (ii) 365; and
C. the product of (x) three and (y) the sum of
the Highest Base Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously
deferred by the Executive, all amounts previously
deferred and not yet paid by the Corporation; and
(ii) for one year after the Date of Termination, the
Corporation 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 and policies described in Section 4(b)(iv) of this
Agreement if the Executive's employment had not been
terminated, including health insurance and life insurance,
if and as in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more
IV-28
favorable to the Executive, as in effect at any time
thereafter with respect to other key executives and their
families and for purposes of eligibility for retiree
benefits pursuant to such plans, programs and policies, the
Executive shall be considered to have remained employed
until the end of the Employment Period and to have retired
on the last day of such period.
Anything herein to the contrary notwithstanding, the
Executive may elect in his Notice of Termination to receive the
payment provided for pursuant to Section 6(d)(i)(C) hereof (the
"Severance Payment") in installments. If the Executive elects
the installment method, one-quarter of the Severance Payment
shall be paid to the Executive on the Payment Date and
one-quarter of the severance payment shall be paid to the
Executive on each of the next three anniversaries thereof and, in
the case of the latter three payments, the amounts to be paid
shall include interests from the Payment Date on the remaining
unpaid balance of the Severance Payment calculated at the ▇▇▇▇▇▇
Guaranty Trust Company prime rate as in effect from time to time.
7. Non-exclusivity of Rights. Nothing in this
Agreement shall prevent or limit the Executive's continuing or
future participation in any benefit, bonus, incentive or other
plan or program provided by the Corporation or any of its
affiliated companies and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as
the Executive may have under any stock option or other agreements
with the Corporation or any of its affiliated companies. Amounts
which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Corporation
or any of its affiliated companies at or subsequent to the Date
of Termination shall be payable in accordance with such plan or
program.
8. Full Settlement. The Corporation's obligation to
make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right
or action which the Corporation 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. The Corporation agrees to pay, 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 Corporation or others
of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance
thereof or as a result of any contest by the Executive about the
amount of any payment pursuant to Section 9 of this Agreement,
plus in each case interest at the Federal Rate (as defined
below).
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9. Gross-up.
(a) In the event it shall be determined that any
payment, benefit or distribution (or combination thereof) by the
Corporation to or for the benefit of Executive (whether paid or
payable or distributed or distributable pursuant to the terms of
this Agreement, or otherwise) (a "Payment") would be subject to
the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code"), or any interest or
penalties are incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest and
penalties, hereinafter collectively referred to as the "Excise
Tax"), Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after
payment by Executive of the Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9,
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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Corporation and
Executive within fifteen (15) business days of the receipt of
notice from Executive that there has been a Payment, or such
earlier time as is requested by the Corporation. In the event
that the Accounting Firm is serving as accountant or auditor for
an individual, entity or group effecting the change in ownership
or effective control (within the meaning of Section 280G of the
Code), 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 Corporation. Any
Gross-Up Payment, as determined pursuant to this Section 9, shall
be paid by the Corporation to Executive within five (5) days
after the receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable by
Executive, it shall so indicate to Executive in writing. Any
determination by the Accounting Firm shall be binding upon the
Corporation and 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 Corporation should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder.
In the event that the Corporation exhausts its remedies pursuant
to Section 9(c) and Executive thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine
the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Corporation to or for
the benefit of Executive.
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(c) Executive shall notify the Corporation in writing
of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Corporation of the Gross-Up
Payment. Such notification shall be given as soon as practicable
but no later than ten (10) business days after Executive is
informed in writing of such claim and shall apprise the
Corporation of the nature of such claim and the date on which
such claim is requested to be paid. Executive shall not pay such
claim prior to the expiration of the thirty (30) day period
following the date on which it gives such notice to the
Corporation (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the
Corporation notifies Executive in writing prior to the expiration
of such period that it desires to contest such claim, Executive
shall:
(i) give the Corporation any information reasonably
requested by the Corporation relating to such claim;
(ii) take such action in connection with contesting
such claim as the Corporation 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 Corporation;
(iii) cooperate with the Corporation in good faith
in order to effectively contest such claim; and
(iv) permit the Corporation to participate in any
proceedings relating to such claim;
provided, however, that the Corporation shall bear and pay
directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis, for
any Excise Tax (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 9(c), the Corporation shall control
all proceedings taken in connection with such contest and, at its
sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option,
either direct Executive to pay the tax claimed and ▇▇▇ for a
refund or contest the claim in any permissible manner, and
Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the
Corporation shall determine; provided, however, that if the
Corporation directs Executive to pay such claim and ▇▇▇ for a
refund, the Corporation shall advance the amount of such payment
to Executive, on an interest-free basis, and shall indemnify and
hold Executive harmless, on an after-tax basis, from any Excise
Tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and provided,
further, that if Executive is required to extend the statute of
limitations to enable the Corporation to contest such claim,
IV-31
Executive may limit this extension solely to such contested
amount.
(d) If, after the receipt by Executive of an amount
advanced by the Corporation pursuant to Section 9(c), Executive
becomes entitled to receive any refund with respect to such
claim, Executive shall (subject to the Corporation's complying
with the requirements of Section 9(c)) promptly pay to the
Corporation the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by Executive of an amount advanced by the
Corporation pursuant to Section 9(c), a determination is made
that Executive shall not be entitled to any refund with respect
to such claim and the Corporation does not notify Executive in
writing of its intent to contest such denial of refund prior to
the expiration of thirty (30) days after such determination, then
such advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be
paid.
10. Confidential Information. The Executive shall
hold in a fiduciary capacity for the benefit of the Corporation
all secret or confidential information, knowledge or data
relating to the Corporation or any of its affiliated companies,
and their respective businesses, which shall have been obtained
by the Executive during the Executive's employment by the
Corporation or any of its affiliated companies and which shall
not be public knowledge (other than by acts by the Executive or
his representatives in violation of this Agreement). After
termination of the Executive's employment with the Corporation,
the Executive shall not, without the prior written consent of the
Corporation, communicate or divulge any such information,
knowledge or data to anyone other than the Corporation and those
designated by it. In no event shall an asserted violation of the
provisions of this Section 10 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under
this Agreement.
11. Successors. (a) This Agreement is personal to
the Executive and without the prior written consent of the
Corporation shall not be assignable by the Executive otherwise
than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and
be binding upon the Corporation and its successors.
(c) The Corporation 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 Corporation to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Corporation would be required to perform it if no such
succession had taken place. As used in this Agreement,
"Corporation" shall mean the Corporation as hereinbefore defined
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and any successor to its business and/or assets as aforesaid
which assumes and agrees to perform this Agreement by operation
of law, or otherwise.
12. Miscellaneous. (a) This Agreement shall be
governed by and construed in accordance with the laws of the
State of New Jersey, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Corporation:
▇. ▇. ▇▇▇▇, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(d) The Corporation may withhold from any amounts
payable under this Agreement such Federal, state or local taxes
as shall be required to be withheld pursuant to any applicable
law or regulation.
(e) The Executive's failure to insist upon strict
compliance with any provision hereof shall not be deemed to be a
waiver of such provision or any other provision thereof.
(f) This Agreement contains the entire understanding
of the Corporation and the Executive with respect to the subject
matter hereof.
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(g) The Executive and the Corporation acknowledge that
the employment of the Executive by the Corporation is "at will",
and, prior to the Effective Date, may be terminated by either the
Executive or the Corporation at any time. Upon a termination of
the Executive's employment or upon the Executive's ceasing to be
an officer of the Corporation, in each case, prior to the
Effective Date, there shall be no further rights under this
Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set his
hand and, pursuant to the authorization from its Board of
Directors, the Corporation has caused these presents to be
executed in its name on its behalf, all as of the day and year
first above written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman and
Chief Executive Officer
Attest:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
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