EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made effective as of the 1st day of
December, 1999, by and between RICHARD COHEN of Edina, Minnesota
("Executive") and NORSTAN, INC., a Minnesota corporation (the "Company"),
W I T N E S S E T H:
WHEREAS, the Company will employ Executive, currently Vice Chairman
of the Company, as Chief Financial Officer of Norstan, Inc.;
WHEREAS, Executive's experience and knowledge are considered to be
necessary to the continued success of the Company's business;
WHEREAS, the Company wishes to enter into an agreement with
Executive governing the terms and conditions of his employment as Chief
Financial Officer, and Executive is willing to be employed on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants hereinafter set forth, the parties do hereby agree as follows:
1. EMPLOYMENT PERIOD. The Company agrees to employ
Executive, and Executive agrees to serve in the full-time employ of the
Company, for the period (the "Employment Period") beginning on December 1,
1999 and ending on April 30, 2000; PROVIDED, that on April 30, 2000, and on
each April 30 thereafter ("Renewal Date"), the Employment Period shall
automatically be extended to the date which is 24 months after such Renewal
Date unless, not later than such Renewal Date, the Company gives Executive
written notice that the Employment Period shall not be so extended; PROVIDED
FURTHER, that in the event of a "Change in Control" (as defined in
subparagraph 7.e. below), the Employment Period shall automatically be
extended to the date which is 36 months after the date on which the Change in
Control occurs. Notwithstanding the foregoing, in no event shall the
Employment Period continue beyond the earliest to occur of the date of
Executive's 65th birthday, the date as of which Executive's employment is
terminated pursuant to paragraph 4 or paragraph 7, or the date of the
Executive's death.
2. DUTIES. During the Employment Period, Executive shall
serve as Chief Financial Officer of Norstan, Inc., or, except as otherwise
provided in this Agreement, in such other executive positions as the Board of
Directors of the Company shall from time to time determine. Executive shall
perform such executive and managerial duties consistent with such positions
as the Chief Executive Officer of the Company shall from time to time direct.
Executive shall devote his best efforts and all of his business time and
attention (except for usual vacation periods and reasonable periods of
illness or other incapacity) to the business of the Company and its
subsidiaries.
3. COMPENSATION. During the Employment Period, Executive
shall be compensated as follows:
a. SALARY AND BONUS. Executive shall be paid a
salary on a bi-weekly basis at an annual rate which is not less than Two
Hundred Thousand and No/100 Dollars ($200,000.00) per year. Executive shall
be eligible to participate in the Company's Annual Incentive Plan (AIP) at a
target level of sixty percent (60%) of eligible base salary earnings. These
amounts may not be lowered except in a manner as modified to similarly
situated employees of the Company.
b. EXPENSES. Executive shall be reimbursed for all
reasonable business expenses incurred in the performance of his duties
pursuant to this Agreement, to the extent such expenses are substantiated and
are consistent with the general policies of the Company and its subsidiaries
relating to the reimbursement of expenses of executive officers.
c. FRINGE BENEFITS. In addition to any other
compensation provided under this Agreement, Executive shall be entitled to
participate, during the Employment Period, in any and all pension, profit
sharing, and other employee benefit plans or fringe benefit programs which
are from time to time maintained by the Company for its executive officers,
in accordance with the provisions of such plans or programs as are from time
to time in effect. Specifically in such regard,
1. EXECUTIVE LTD: Employee may
participate in the Company executive long-term disability policy while so
maintained by the Company. The premiums shall be paid by the Company.
2. CLUB DUES: The Company shall reimburse
the Executive for the dues and Company expenses incurred at up to a total two
(2) local country and business clubs, to be mutually determined by the
parties.
d. DEDUCTIONS; WITHHOLDING AND TAXES. All
compensation and other benefits payable to or on behalf of Executive pursuant
to this Agreement shall be subject to such deductions and withholding as may
be agreed to by Executive or required by applicable law. Executive
acknowledges that various benefits provided by the Company may result in
additional taxable income to the Executive and Executive agrees to be solely
liable for any such tax liability.
4. DISABILITY. If, during the Employment Period, Executive
shall become incapacitated by accident or illness and, in the opinion of the
Board of Directors of the Company, shall be unable to perform the duties of
the positions he then occupies for a period of 150 consecutive days, the
Company shall have the right to terminate the Employment Period effective at
any time after such 150 day period of disability by giving 30 days advance
written notice to Executive. If the Employment Period is thus
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terminated, Executive shall not be entitled to receive any compensation or
other benefits pursuant to this Agreement, other than compensation or
benefits accrued through the effective date of such termination.
5. DEATH. If Executive shall die during the Employment
Period without having breached any of the terms of this Agreement in any
material respect, his base salary (at the rate in effect at the time of his
death) shall be continued for a period of 12 months to the beneficiary named
in the last written instrument signed by Executive for the purposes of this
Agreement and received by the Company prior to his death. If Executive fails
to name a beneficiary, such amounts shall be paid to his estate.
6. OTHER BENEFITS. The compensation provisions of this
Agreement shall be in addition to, and not in derogation or diminution of,
any benefits that Executive or his beneficiaries may be entitled to receive
under the provisions of any pension, profit sharing, disability, or other
employee benefit plan now or hereafter maintained by the Company.
7. TERMINATION.
a. FOR CAUSE BY COMPANY. The Company may terminate
Executive's employment for cause upon 60 days prior written notice to
Executive. Such notice shall specify in reasonable detail the nature of the
cause and, during such 60 day period, Executive shall have the opportunity to
cure the stated cause. If Executive fails to cure a stated cause, the
Employment Period shall terminate at the end of the 60 day notice period, but
without prejudice to Executive's right to contest the existence of any stated
cause and/or to contest the fact that the cause has not been cured. For the
purposes of this Agreement, cause shall mean any conduct by Executive
involving an act or acts of dishonesty on the part of the Executive
constituting a felony and resulting or intended to result directly or
indirectly in gain or personal enrichment at the expense of the Company, or
any failure by Executive to comply with the terms of this Agreement in any
material respect.
b. INELIGIBILITY. If the Company terminates
Executive's employment for cause, or if Executive voluntarily terminates his
employment under circumstances other than those specified in subparagraphs
7.c., or 13.a., Executive shall not be entitled to receive any compensation
or other benefits pursuant to this Agreement, other than compensation or
benefits accrued through the effective date of such termination.
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c. ELIGIBILITY. If, after or due to a "Change in
Control" (as such term is defined in subparagraph 7.e. below), and prior to
the expiration of the then current extension of the Employment Period, (a)
Executive voluntarily terminates his employment (i) because he has been
reassigned to a position of lesser rank or status or because he has been
transferred to a location which is more than 25 miles from his previous
principal place of employment, or because his base salary or incentive
compensation has been reduced, or because his benefits have been reduced
(unless such reduction is made uniformly in a plan of general application to
all of the Company's eligible employees); or (ii) for Good Reason (as defined
below); or (iii) if his health should become impaired to an extent that makes
his continued performance of his duties hereunder hazardous to his physical
or mental health or his life, provided that the Executive shall have
furnished the Company with a written statement from a qualified physician to
such effect and provided, further, that, at the Company's request, the
Executive shall submit to an examination by a physician selected by the
Company and such doctor shall have concurred in the conclusion of the
Executive's doctor; or (iv) for any reason in Executive's sole discretion at
any time within 18 months after the date of a Change in Control of the
Company by giving thirty (30) days prior notice of his intention to
terminate; or (b) the Company terminates Executive's employment for reasons
other than those specified in paragraph 4 or subparagraph 7.a. of this
Agreement, then Executive shall receive the compensation and benefits set
forth in paragraph 8 below.
(i) For purposes of this Agreement, "Good Reason" shall
mean (A) a failure by the Company to comply with any material provision of
this Agreement which has not been cured within ten (10) days after notice of
such noncompliance has been given by the Executive to the Company, or (B) any
purported termination of the Executive's employment which is not effected
pursuant to a notice of termination which notice shall indicate the specific
termination provision in this Agreement relied upon and shall set 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.
d. WITHOUT CAUSE BY COMPANY. If, other than caused by a
Change in Control, the Company terminates Executive's employment at any time
prior to the expiration of the initial or then current extension of the
Employment Period for reasons other than those specified in paragraph 4 or
subparagraph 7.a. of this Agreement, then Executive shall continue to receive
his base salary and fringe benefits for a period of 12 months.
e. CHANGE IN CONTROL, DEFINED. For the purposes of this
Agreement, a Change in Control shall be deemed to occur when and if, during
the Employment Period:
(i) any Person (meaning any individual, firm,
corporation, partnership, trust or other entity, and includes
a "group" (as that term is used in Sections 13(d) and 14(d) of
the Act), but excludes
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Continuing Directors (as defined below) and benefit plans
sponsored by the Company):
(A) makes a tender or exchange offer for any
shares of the Company's outstanding voting securities
at any point in time (the "Company Stock") pursuant
to which any shares of the Company's Stock are
purchased; or
(B) together with its "affiliates" and
"associates" (as those terms are defined in Rule
12b-2 under the Securities Exchange Act of 1934 (the
"Act")) becomes the "beneficial owner" (within the
meaning of Rule 13d-3 under the Act) of at least 20%
of Company's Stock; or
(ii) the stockholders of the Company approve a
definitive agreement or plan to merge or consolidate the
Company with or into another unaffiliated corporation, to sell
or otherwise dispose of all or substantially all of its
assets, or to liquidate the Company; or
(iii) a majority of the members of the Board become
individuals other than Continuing Directors (as defined
below).
A "Continuing Director" means: (a) any member of the Board
as of April 1, 1995, and (b) any other member of the Board, from time to
time, who was (i) nominated for election by the Board or (ii) appointed by
the Board to fill a vacancy on the Board or to fill a newly-created
directorship, in each case excluding any individual nominated or appointed
(y) at a Board meeting at which the majority of directors present are not
Continuing Directors or (z) by unanimous written action of the Board unless a
majority of the directors taking such action are Continuing Directors.
8. COMPENSATION ON CHANGE IN CONTROL. In the event of a
termination under subparagraph 7.c. above, during the Period of Employment or
any extension thereof:
(i) The Company shall pay the Executive any earned
and accrued but unpaid installment of base salary through the
Date of Termination, at the rate in effect on the Date of
Termination, or if greater, on the date immediately preceding
the date that a Change in Control occurs, and all other unpaid
amounts to which the Executive is entitled as of the Date of
Termination under any compensation plan or program of the
Company, including, without limitation, all accrued vacation
time; such payments to be made in a lump sum on or before the
fifth day following the Date of Termination.
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(ii) In lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination,
the Company shall pay as liquidated damages to the Executive
an amount equal to the product of (A) the sum of (1) the
Executive's annual salary rate in effect as of the Date of
Termination, or if greater, on the date immediately preceding
the date that a Change in Control occurs, and (2) the greater
of: (i) the prior year's actual incentive payment to the
Executive under the Company's incentive plan for that year or
(ii) the dollar amount payable at 100% of target under the
Company's then current incentive plan for the year in which
occurs such Date of Termination, and (B) the number two (2);
such payment to be made in a lump sum on or before the fifth
day following the Date of Termination.
(iii) The Company shall pay all other damages to
which the Executive is entitled as a result of such
termination, including damages for any and all loss of
benefits to the Executive under the Company's employee welfare
benefit plans and perquisite programs which the Executive
would have received had the Executive's employment continued
for an additional two (2) years, and including all reasonable
legal fees and expenses incurred by him as a result of such
termination, including the fees and expenses of enforcing the
terms of this Agreement; payment of such fees to be made
within thirty (30) days following the Company's receipt of an
appropriate invoice therefor.
(iv) For a period of not less than twenty-four (24)
months following the Executive's Date of Termination, the
Company will reimburse the Executive in an amount not to
exceed $15,000 for all reasonable expenses of a reputable
outplacement organization incurred by him (but not including
any arrangement by which the Executive prepays expenses for a
period of greater than thirty (30) days) in seeking employment
with another employer.
(v) Executive shall be fully vested in all shares of
restricted stock, performance awards, stock appreciation
rights and stock options granted to him under the Norstan,
Inc. 1995 Long-Term Incentive Plan (or any predecessor or
successor plan) on the date of a Change in Control.
(vi) The present value (as defined herein) of the
liquidated damages payable to the Executive under subsection
(ii) above, and any other payments otherwise payable to the
Executive by the Company on or after a Change in Control, as
defined in Section
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280G of the Internal Revenue Code of 1986, as amended (the
"Code"), which are deemed under said Section 280G to
constitute "parachute payments" (as defined in Section
280G without regard to Section 280G(b)(2)(A)(ii)), shall be
less than three times the Executive's base amount (as defined
herein). In the event that the present value of such payments
equals or exceeds such amount, the provisions set forth in
this subparagraph (vi) will apply, and liquidated damages or
other severance benefits payable to the Executive under this
Agreement will be made only in accordance with this
subparagraph (vi) notwithstanding any provision to the
contrary in this Agreement.
(A) Not later than thirty days after the
Date of Termination, the Company will provide the
Executive with a schedule indicating by category the
present value of the liquidated damages payable to
the Executive under this Agreement, all other
benefits payable to the Executive under this
Agreement (specifying the paragraph, subparagraph or
clause under which each such payment is to be made)
and any other payments otherwise payable to the
Executive by the Company on or after the Change in
Control, which, in the Company's opinion, constitute
parachute payments under Section 280G of the Code. No
payments under this Agreement shall be made until
after thirty days from the receipt of such schedule
by the Executive. At any time prior to the expiration
of said 30-day period, the Executive shall have the
right to select from all or part of any category of
payment to be made under this Agreement those
payments to be made to the Executive in an amount the
present value of which (when combined with the
present value of any other payments otherwise payable
to the Executive by the Company that are deemed
parachute payments) is less than 300 percent of the
Executive's base amount. If the Executive fails to
exercise his right to make a selection, only a lump
sum cash severance payment equal to one dollar less
than 300 percent of the Executive's base amount
(reduced by the present value of any other payments
otherwise payable to the Executive by the Company
that are deemed parachute payments and increased, to
the extent such increase will not cause the payment
to be an excess parachute payment under Section 280G
of the Code, by interest from the Date of Termination
to the date of payment at the Federal short-term
rate, compounded annually, promulgated under Section
1274(d) of the Code as effective for the month in
which the
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Date of Termination occurs) shall be made to the
Executive on the day after the expiration of
the period extending thirty days from his receipt of
the schedule provided for hereunder, and no other
liquidated damages or other benefits under
subparagraphs (ii), (iii), (iv) and (v) above of this
Agreement shall be paid to the Executive.
(B) If the Company fails to supply the
schedule within thirty days of the Date of
Termination, then the provisions of this subparagraph
(vi) shall not apply and the Company shall be
obligated to pay to the Executive the full amount of
liquidated damages and other benefits under this
Agreement, without regard to subparagraph (vi).
(C) If the Executive disagrees with the
schedule prepared by the Company, then the Executive
shall have the right to submit the schedule to
arbitration, conducted before a panel of three
arbitrators in Minneapolis, Minnesota, in accordance
with the rules of the American Arbitration
Association then in effect. The period in which the
Executive may select his benefits under this
Agreement shall be extended until fifteen days after
a final and binding arbitration award is issued or a
final judgment, order or decree of a court of
competent jurisdiction is entered upon such
arbitration award (the time for appeal therefrom
having expired and no appeal having been perfected),
and the Company's period for paying the Executive's
unpaid benefits under this Agreement shall be
extended until ten days thereafter. If the Executive
fails to make a selection within said fifteen day
period, the Company shall pay the unpaid benefits
within five days following the expiration of the
Executive's fifteen day period.
(D) For purposes of this subparagraph (vi),
"present value" means the value determined in
accordance with the principles of Section 1274(b)(2)
of the Code under regulations promulgated under
Section 280G of the Code, and "base amount" means the
annualized includible compensation for the base
period payable to the Executive by the Company and
includible in the Executive's gross income for
Federal income tax purposes during the shorter of the
period consisting of the most recent five taxable
years ending before the date of any Change in Control
of the Company or the portion of such period during
which the Executive was an employee of the Company.
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(E) In the event that Section 280G of the
Code, or any successor statute, is repealed, this
subparagraph (vi) shall cease to be effective on the
effective date of such repeal.
(vii) The Executive shall not be required to mitigate
damages or the amount of any payment provided for under this
Agreement by seeking other employment or otherwise, nor shall
the amount of any payment provided for under this Agreement be
reduced by any compensation earned by the Executive as the
result of employment by another employer after the Date of
Termination, or otherwise.
9. COMPETITION.
a. During the Employment Period, Executive will not, except
with the express written consent of the Chief Executive Officer of the
Company, become engaged in, or permit his name to be used in connection with
any business other than the businesses of the Company and its subsidiaries,
whether or not such other business is a competitive business.
b. Executive covenants and agrees that for a period of 12
months after the termination of the Employment Period, or for such longer
period as Executive is receiving payments pursuant to paragraph 8, he will
not, except with the express written consent of the Chief Executive Officer
of the Company, engage directly or indirectly in, or permit his name to be
used in connection with any competitive business in the geographic area
serviced by the Company or its subsidiaries. Executive further covenants and
agrees for a period of 12 months from the date of termination of his
employment hereunder not to solicit or assist anyone else in the solicitation
of, any of the Company's then-current employees to terminate their employment
with the Company and to become employed by any business enterprise with which
the Executive may then be associated, affiliated or connected.
c. For the purposes of this paragraph 9: (i) the phrase,
"engage directly or indirectly in" shall encompass: (A) all of Executive's
activities whether on his own account or as an employee, director, officer,
agent, consultant, independent contractor, or partner of or in any person,
firm, or corporation (other than the Company and its subsidiaries), or (B)
Executive's ownership of more than 10% of the voting stock of any
corporation, 5% or more of the gross income of which is derived from any
business or businesses in which Executive may not then engage; and (ii) the
phrase "competitive business" shall mean: (A) the sale of telephone,
telecommunications, or similar equipment, or (B) any other business in which
the Company or its subsidiaries is then engaged.
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d. Notwithstanding the foregoing, the restrictions set
forth in subparagraph 9.b. shall not apply if Executive's employment is
terminated under any of the circumstances described in subparagraphs 7.c. or
13.a.
10. CONFIDENTIAL INFORMATION. Executive agrees that he will not,
without the prior written consent of the Board of Directors of the Company,
during the term or after termination of his employment under this Agreement,
directly or indirectly disclose to any individual, corporation, or other
entity (other than the Company or any subsidiary thereof, their officers,
directors, or employees entitled to such information, or to any other person
or entity to whom such information is regularly disclosed in the normal
course of the Company's business) or use for his own or such another's
benefit, any information, whether or not reduced to written or other tangible
form, which:
a. is not generally known to the public or in the industry;
b. has been treated by the Company or any of its
subsidiaries as confidential or proprietary; and
c. is of competitive advantage to the Company or any of its
subsidiaries and in the confidentiality of which the Company or any of its
subsidiaries has a legally protectable interest.
Information which becomes generally known to the public or in the industry,
or in the confidentiality of which the Company and its subsidiaries cease to
have a legally protectable interest, shall cease to be subject to the
restrictions of this paragraph.
11. ENFORCEMENT. If, at the time of enforcement of any provision of
paragraphs 9 or 10, a court shall hold that the period, scope, or
geographical area restrictions stated therein are unreasonable under
circumstances then existing, the maximum period, scope, or geographical area
reasonable under the circumstances shall be substituted for the stated
period, scope, or area. In the event of a breach by Executive of any of the
provisions of paragraphs 9 or 10, the Company may, in addition to any other
rights and remedies existing in its favor, apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce or prevent any violations of the
provisions hereof.
12. PAYMENT OF COSTS. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys fees, costs and necessary
disbursements in addition to any other relief to which it may be entitled. In
addition, if a dispute arises regarding a termination of Executive's
employment after a Change in Control and Executive obtains a final judgment
in his favor from a court of competent jurisdiction from which no appeal may
be taken, whether because the time to do so has expired or otherwise, or his
claim is settled by the Company prior to the rendering of such a judgment,
all reasonable legal fees and
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expenses incurred by Executive in contesting or disputing any such
termination, in seeking to obtain or enforce any right or benefit provided
for in this Agreement, or in otherwise pursing his claim will be promptly
paid by the Company, with interest thereon at the highest Minnesota statutory
rate for interest on judgments against private parties, from the date of
payment thereof by Executive to the date of reimbursement to him by the
Company.
13. SUCCESSORS.
a. OF THE COMPANY. 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 to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would have been required to
perform it if no such succession had taken place. Failure of the Company to
obtain such agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Executive to terminate his
employment with the Company and to receive the payments and benefits provided
for in paragraph 8. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined, and any successor to the business and/or
assets of the Company which executes and delivers the agreement provided for
in this paragraph 13 or which otherwise becomes bound by all the terms and
provisions of this Agreement as a matter of law.
b. OF EXECUTIVE. 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, devisees 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 devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
14. GENERAL PROVISIONS.
a. ASSIGNMENTS. Executive's rights and interests under this
Agreement may not be assigned, pledged, or encumbered by him without the
Company's written consent.
b. EFFECT OF HEADINGS. The headings of all of the
paragraphs and subparagraphs of this Agreement are inserted for convenience
of reference only, and shall not affect the construction or interpretation of
this Agreement.
c. MODIFICATION, AMENDMENT, WAIVER. No modification,
amendment, or waiver of any provision of this Agreement shall be effective
unless approved in writing by both parties. The failure at any time to
enforce any of the
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provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter to
enforce each and every provision of this Agreement in accordance with its
terms.
d. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
e. NO STRICT CONSTRUCTION. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be
applied against any person.
f. APPLICABLE LAW. All questions concerning the
construction, validity, and interpretation of this Agreement shall be
governed by the laws of the State of Minnesota.
g. NOTICES. Any notice to be served under this Agreement
shall be in writing and shall be mailed by registered mail, registry fee and
postage prepaid and return receipt requested, addressed:
If to the Company, to:
Norstan, Inc.
5101 Shady Oak Road
Minnetonka, MN 55343
Attention: Chief Executive Officer; or
If to Executive, to:
Richard Cohen
6990 Tupa Drive
Edina, MN 55439
or to such other place as either party may specify in writing, delivered in
accordance with the provisions of this subparagraph.
h. SURVIVAL. The rights and obligations of the parties
shall survive the term of Executive's employment to the extent that any
performance is required under this Agreement after the expiration or
termination of such term.
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i. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter thereof, and
supersedes all previous agreements between the parties relating to the same
subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
NORSTAN, INC. (the "Company")
By
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Chief Executive Officer
RICHARD COHEN (the "Executive")
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