1
EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
EMPLOYMENT AGREEMENT
AGREEMENT, made September 30, 1996, (the "Effective Date") by and between
ANTIGUA ACQUISITION CORPORATION, a Delaware corporation and THOMAS C. WAJNERT
("Executive").
RECITALS
In order to induce Executive to continue to serve as the Chairman and Chief
Executive Officer of AT&T Capital Corporation, a Delaware Corporation (the
"Company") after the transaction (the "Transaction") contemplated in the
Agreement and Plan of Merger among the Company, AT&T Corp., Hercules Limited and
Antigua Acquisition Corporation, dated as of June 5, 1996 (the "Merger
Agreement") Antigua Acquisition Corporation and its successors, the Company,
desire to provide Executive with compensation and other benefits on the terms
and conditions set forth in this Agreement, which are expressly conditional on
the consummation of the Transaction.
Executive is willing to accept such employment and perform services for the
Company, on the terms and conditions hereinafter set forth.
It is therefore hereby agreed by and between the parties as follows:
1. Employment.
1.1 Subject to the terms and conditions of this Agreement, the Company
shall employ Executive during the term hereof as its Chairman and Chief
Executive Officer. In his capacity as the Chairman and Chief Executive Officer
of the Company, Executive shall report to the Board of Directors of the Company
(the "Board") and shall have the customary powers, responsibilities and
authorities of chairmen and chief executive officers of corporations of the
size, type and nature of the Company, as it exists from time to time, as are
assigned by the Board.
1.2 Subject to the terms and conditions of this Agreement, Executive hereby
accepts employment as the Chairman and Chief Executive Officer of the Company
commencing on the date of the Transaction, and, except as set forth in Section
1.4, agrees to devote his full working time and efforts to the performance of
services, duties and responsibilities in connection therewith, and shall perform
his functions at the Company with at least the care that an ordinarily prudent
person of like ability, experience and talent would reasonably be expected to
exercise under similar circumstances. Executive shall perform such duties and
exercise such powers, commensurate with his position, as the Chairman and Chief
Executive Officer of the Company as the Board shall from time to time delegate
to him and as are consistent with Section 1.1 hereof, on such terms and
conditions and subject to such restrictions as such Board may reasonably from
time to time impose.
1.3 At all times during the term of employment hereunder, Executive shall
be a member of the Board. Nothing in this Agreement shall preclude Executive
from engaging in charitable and community affairs, from managing any passive
investment made by him in publicly traded equity securities or other property
(provided that no such investment may exceed 1% of the equity of any entity,
without the prior approval of such Board of
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FORM 10-Q for the Quarter
Ended September 30, 1996
Directors) so long as such activities do not materially interfere with his
duties and responsibilities hereunder, or from serving, subject to the prior
approval of such Board of Directors, as a member of boards of directors or as a
trustee of any other corporation, association or entity. The Board hereby
consents to Executive's current outside board and association activities as set
forth in Exhibit A to this Agreement.
2. Term of Employment. Executive's term of employment under this Agreement
shall commence on the date of the Transaction and, subject to the terms hereof,
shall terminate on the earlier of (i) December 31, 1999 (the "Termination Date")
or (ii) termination of Executive's employment pursuant to this Agreement.
3. Compensation.
3.1 Salary. The Company shall pay Executive a base salary ("Base Salary")
during Executive's term of employment hereunder equal to $625,000 per annum.
Base Salary shall be payable in accordance with the ordinary payroll practices
of the Company and may be increased by the Board in its sole discretion.
3.2 Annual Bonus. (a) Executive shall be paid an annual bonus in respect of
1996 equal to $677,808 at the time that 1996 annual cash bonus payments are made
to Company senior executives, but in no event later than March 31, 1997.(b)
Executive shall be paid an annual bonus (each, together with the bonus described
in clause (a) above, a "Bonus") during the term of his employment hereunder in
respect of 1997, 1998 and 1999 with a target amount equal to 60% of Base Salary
(the "Target Bonus") based on performance criteria determined by the Board in
its sole discretion. The Board in its sole discretion may determine whether
Executive has met the performance criteria. If performance exceeds target, the
Board may authorize the Company to pay a bonus greater than the Target Bonus and
if performance is below target, the Board may authorize the Company to pay a
bonus lower than the Target Bonus. (a) In addition, in 1997, Executive shall
receive a one-time payment equal to $1,000,000 (the "One-Time Payment"). The
One-Time Payment shall be paid at the time that 1996 annual cash bonus payments
are made to Company senior executives, but in no event later than March 31,
1997, of which $722,192 constitutes a signing bonus.
3.3 Stock Option Grants. Effective on the date of the Transaction,
Executive shall receive options to purchase 598,900 shares of Company stock,
which shall be subject to the terms and conditions of Exhibit C.
4. Employee Benefits.
4.1 Employee Benefit Programs, Plans and Practices. Except as otherwise
specifically provided in this Agreement, the Company shall provide Executive
during the term of his employment hereunder with coverage under all employee
pension and welfare benefit programs, plans and practices (commensurate with his
positions in the Company and to the extent permitted under any employee benefit
plan), other than severance plans, in accordance with the terms thereof, which
the Company makes available to its senior executives, other than those in which
he elects not to participate by written notice to the Company. No benefit
otherwise available to the
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FORM 10-Q for the Quarter
Ended September 30, 1996
Executive under any of the five Retirement Plans listed in Exhibit D, or under
any of the four Health and Welfare Benefit Plans and Programs listed as items 1,
2, 3 and 8 in Exhibit D, shall be materially reduced without the Executive's
advance written consent unless the Executive is provided with the after-tax
economic equivalent of such benefit reduction. The economic equivalent of any
benefit foregone shall be deemed to be the total cost to Executive of obtaining
the lost benefit directly, on an individual basis. The required after-tax
economic equivalent shall be payable quarterly in arrears. In addition, no
benefit otherwise available to the Executive under any pension or welfare
benefit plan, program or practice referred to in Exhibit D shall be materially
reduced except as part of an across-the-board reduction applying to all senior
executives of the Company. Executive shall be entitled to a pension benefit
determined in accordance with the Executive Benefit Plan in effect on the date
of this Agreement based on Credited Service equal to his actual years of service
with the Company (currently eleven (11) years) less the pension benefits he
actually receives under (i) the Executive Benefit Plan, (ii) any other defined
benefit pension plan maintained by the Company, and (iii) any other plan the
benefits of which offset or reduce the amounts otherwise payable under the
Executive Benefit Plan.
4.2 Vacation and Fringe Benefits. Executive shall be entitled to no less
than five weeks paid vacation in each calendar year, which shall be taken at
such times as are consistent with Executive's responsibilities hereunder. In
addition, Executive shall be entitled to the perquisites and other fringe
benefits made available to senior executives of the Company, commensurate with
his position with the Company. For purposes of illustration, the perquisites and
other fringe benefits in effect immediately prior to the Transaction are set
forth in Exhibit E.
5. Expenses. Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this Agreement, including,
without limitation, expenses for travel and similar items related to such duties
and responsibilities. The Company will reimburse Executive for all such expenses
upon presentation by Executive from time to time of appropriately itemized and
approved (consistent with the Company's policy) accounts of such expenditures.
6. Termination of Employment. 6.1 Termination Not for Cause or for Good
Reason. (a) Either Executive or the Company may terminate Executive's employment
at any time for any reason. If Executive's employment is terminated by the
Company other than (i) for Cause (as defined in Section 6.4 hereof) or (ii) as a
result of Executive's death or Permanent Disability (as defined in Section 6.2
hereof) or if Executive terminates his employment for Good Reason (as defined in
Section 6.1 (c) hereof), in either case prior to December 31, 1999, Executive
shall promptly receive those payments (if any) (and be entitled to those
benefits (if any), under Company plans or programs generally applicable to its
senior executives, to which he is entitled pursuant to the terms of such plans
or programs, as well as the One-Time Payment, if it has not previously been
made. In addition, Executive shall be entitled to receive an amount (the
"Termination Amount") in lieu of any Bonus in respect of all or any portion of
the fiscal year in which such termination occurs and any other cash compensation
(other than the payments referred to in this Section 6.1(a)
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FORM 10-Q for the Quarter
Ended September 30, 1996
hereof), which Termination Amount shall be payable within 30 days following such
termination of employment. The Termination Amount shall consist of the sum of
(i) the Applicable Percentage (as defined below) of Executive's Final Annual Pay
(as defined below), (ii) 110% of the Target Bonus for the year of termination
(the Target Bonus being deemed to be $677,808 for 1996) and (iii) 135% of the
premium necessary to obtain COBRA continued health and dental coverage for 24
months. For purposes of this Section 6.1, the "Applicable Percentage" shall mean
300% multiplied by a fraction, the numerator of which is the number of days from
and including the date of termination through, but not including, the
Termination Date and the denominator of which is the number of days from and
including the date of this Agreement through, but not including, the Termination
Date. In addition, Executive shall be entitled to receive a cash lump sum
payment in respect of accrued but unused vacation days (the "Vacation Payment"),
to any accrued but unpaid base salary and to any compensation previously
deferred but not yet paid (including any deferred Bonus payments and any Bonus
amount awarded but not yet paid) (the "Compensation Payment"), and to continued
coverage for basic life insurance (one times annual salary) for 24 months under
any employee life insurance plan in accordance with the respective terms
thereof. If Executive has supplemental life insurance through the Company, the
Company shall permit Executive to continue such life insurance coverage, at
Executive's cost, for up to 24 months from the date of termination. As a
condition to Executive's receipt of the benefits set forth in this Section 6.1,
on or prior to the date of termination, Executive shall sign a separation
agreement and general release in the form annexed hereto as Exhibit F. In the
event that Executive is terminated by the Company without Cause and the Company
provides Executive with less than 90 days of notice prior to the termination,
the Company shall also pay Executive, within 30 days following the date of
termination, a sum equal to the product of (i) the quotient of (a) the excess of
(1) 90 over (2) the number of days of notice provided Executive prior to the
termination, divided by (b) 365, multiplied by (ii) the Base Salary; the Company
shall also provide Executive with 100% of Executive's COBRA premiums for the
period equal to the excess of (1) 90 over (2) the number of days of notice
provided Executive prior to termination.(b) The Vacation Payment and the
Compensation Payment shall be paid by the Company to Executive within 30 days
after the termination of Executive's employment by check payable to the order of
Executive or by wire transfer to an account specified by Executive. (c) For
purposes of this Agreement, "Good Reason" shall mean any of the following
(without Executive's express prior written consent):(i) The assignment to
Executive of any duties inconsistent, in a way significantly adverse to
Executive, with Executive's positions, duties and responsibilities with the
Company immediately following the Transaction, or a significant reduction in the
duties and responsibilities held by Executive immediately following the
Transaction, a change in Executive's reporting responsibilities, title or
offices as in effect immediately following the Transaction that is significantly
adverse to Executive; or any removal of Executive from or any failure to
re-elect Executive to any position with the Company or any such Subsidiary that
Executive held immediately following the Transaction except in connection with a
termination of employment for Cause (or in the case of Retirement, death or
permanent Disability, or in connection with a plan of succession to Executive's
responsibilities and authorities to which Executive has agreed);(ii)A reduction
by the Company in Executive's annual Base Salary as
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FORM 10-Q for the Quarter
Ended September 30, 1996
in effect immediately following the transaction, or as the same may be increased
from time to time thereafter or a reduction in the Target Bonus specified in
section 3.2(b); (iii) A material breach of the terms of Section 4.1 by the
Company; (iv) The Company requiring Executive to be based anywhere other than
Executive's present work location or a location within fifty (50) miles from
such present location; (v) A material breach of this Agreement by the Company;
(vi) Any material reduction in the thresholds contained in the Company's
schedule of authorizations from the levels to be negotiated in good faith, and
reasonably promptly, by the parties; or (vii) The failure of the Company to
obtain the assumption in writing (unless such successor or assign assumes the
obligations of the Company under this Agreement by operation of law) of its
obligation to perform all aspects of this Agreement by any successor or assign
within 90 days after any merger, consolidation, sale of substantially all of the
assets of or similar transaction involving the Company. Provided that; for
avoidance of doubt, Executive acknowledges that the shareholders of the Company
and Nomura International plc will (subject to approval by Executive, which
approval shall not be unreasonably withheld) second certain individuals to key
roles in the Company and that (i) members of the Board of Directors of the
Company and (ii) any other individual representatives of the shareholders of the
Company or Nomura International plc may (subject to approval by Executive, which
approval shall not be unreasonably withheld) attend and participate in meetings
of the Company's Corporate Leadership Team (or any successor group or committee
thereof). Any such approved secondment or participation shall not be considered
to result in Good Reason; and provided further that, in the case of any such
termination of employment by the Executive for Good Reason, such termination
shall not be deemed for Good Reason unless (A) such termination occurs within
ninety (90) days after the Executive receives notice of the occurrence of the
events constituting the reason for such termination and, (B) in the case of any
event described in (i), (iii), (v), (vi) or (vii) above, the Executive has
provided notice that he intends to resign for Good Reason, specifying the
particular circumstances that he believes constitute Good Reason and the Company
has not, within 30 days after the notice provided by the Executive, taken steps
to rectify the action which gave rise to the Good Reason. (d) For purposes of
this Agreement, "Final Annual Pay" shall mean the higher of (i) the sum of
Executive's Base Salary and 110% of the Target Bonus for the year in which the
date of termination occurs (not taking into account any reduction that would
constitute a basis for Good Reason) (the Target Bonus being deemed to be
$677,808 for 1996) and (ii) the quotient equal to (A) the sum of Executive's (1)
Base Salary (not taking into account any reduction that would constitute a basis
for Good Reason), and (2) actual annual incentive payments earned under
applicable Company annual incentive plans or programs, during the three
consecutive calendar years preceding Executive's date of termination in which he
had the greatest aggregate earnings, divided by (B) three. For purposes of
calculating Final Annual Pay, the One-Time Payment and any sign-on fees,
retention fees, waiver fees and any other fees, bonuses or similar compensation
(other than annual incentive payments earned under applicable Company annual
incentive plans or programs, and specifically including the $677,808 annual
incentive bonus referred to in Section 3.2(a)) shall be disregarded.
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FORM 10-Q for the Quarter
Ended September 30, 1996
6.2 Permanent Disability. If the Executive becomes totally and permanently
disabled (as defined in Sections 2(1)(a) and 2(1)(b) of the current AT&T Senior
Management Long Term Disability and Survivor Protection Plan ("Permanent
Disability"), the Company or Executive may terminate Executive's employment on
written notice thereof, and Executive shall receive or commence receiving, as
soon as practicable: (i) amounts payable pursuant to the terms of any disability
plan, insurance policy or similar arrangement which the Company maintains during
the term hereof; (ii) the Target Bonus in respect of the fiscal year in which
his termination occurs, prorated by a fraction, the numerator of which is the
number of days of the fiscal year until termination and the denominator of which
is 365; (iii) the Vacation Payment and the Compensation Payment; and (iv) such
payments and benefits under applicable plans or programs, including but not
limited to those referred to in Section 4.1 hereof, to which he is entitled
pursuant to the terms of such plans or programs.
6.3 Death. In the event of Executive's death during the term of his
employment hereunder, Executive's estate or designated beneficiaries shall
receive or commence receiving, as soon as practicable:(i) the Target Bonus in
respect of the fiscal year in which his death occurs, prorated by a fraction,
the numerator of which is the number of days of the fiscal year until his death
and the denominator of which is 365; (ii) any death benefits provided under the
employee benefit programs, plans and practices referred to in Section 4.1
hereof, in accordance with their terms; (iii) the Vacation Payment and the
Compensation Payment; and (iv) such payments under applicable plans or programs,
including but not limited to those referred to in Section 4.1 hereof, to which
Executive's estate or designated beneficiaries are entitled pursuant to the
terms of such plans or programs.
6.4 Voluntary Termination by Executive; Discharge for Cause. (a) In the
event that Executive's employment is terminated by the Company for Cause, as
hereinafter defined, or by Executive other than for Permanent Disability, death
or Good Reason, Executive shall only be entitled to receive the Compensation
Payment, the Vacation Payment and any Bonus amount awarded but not yet paid.
Executive shall not be entitled, among other things, to the payment of any Bonus
in respect of all or any portion of the fiscal year in which such termination
occurs or any form of severance payment. After the termination of Executive's
employment under this Section 6.4, the obligations of the Company to make any
further payments or provide any benefits specified herein, to Executive, other
than as otherwise provided in this Agreement or under the terms of the plans and
programs of the Company generally applicable to its senior executives, shall
thereupon cease and terminate. (b) As used herein, the term "Cause" shall be
limited to (i) Executive's conviction of a felony (or a guilty or nolo
contendere plea in connection therewith) or (ii) a material breach by the
Executive of his duties and responsibilities under the Agreement that causes
significant harm to the Company, which breach is (A) either willful and
deliberate or the product of gross neglect, (B) committed in bad faith or
without reasonable belief that such breach is in, or not contrary to, the best
interests of the Company and (C) not remedied within a reasonable period of time
after receipt of written notice from the Company specifying such breach.
Termination of Executive pursuant to this Section 6.4 shall be made by delivery
to Executive of a copy of a resolution duly adopted by
7 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
the affirmative vote of not less than a majority of the continuing Directors at
a meeting of the Board of Directors of the Company called and held for the
purpose (after 30 days prior written notice to Executive and reasonable
opportunity for Executive to be heard before the Board prior to such vote),
finding that in the reasonable judgment of such Board, Executive was guilty of
conduct set forth in any of clauses (i) through (iii) above and specifying the
particulars thereof, which determination shall be subject to de novo review in
accordance with the procedures of Section 7.1.
6.5 Noncompetition Agreement. During the two year period after Executive's
termination of employment (other than due to death) the Executive shall receive,
in 24 equal installments, commencing on the date of his termination of
employment, an aggregate amount equal to his Final Annual Pay, conditioned on
Executive's compliance with the terms of Section 12.
7. Mitigation of Damages. 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 after the termination of his employment
hereunder, and the amounts earned by Executive, whether from self-employment, as
a common-law employee or otherwise, shall not reduce the amount of any
Termination Amount otherwise payable to him.
7.1 Arbitration. Any controversy or claim arising out of or relating to
this Agreement, any amendment of this Agreement, or any breach of any of the
foregoing, shall, at the election of either Party, be resolved by confidential
arbitration, to be held in Morristown, New Jersey, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. Judgment
upon the award may be entered in any court having jurisdiction thereof.
7.2 Certain Additional Payments by the Company and Payment Limitations. (a)
In the event it shall be determined that any payment or distribution by the
Company or any of its affiliates to or for the benefit of Executive (whether or
not made hereunder) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Code or imposed by any other taxing authority, 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, are hereinafter
collectively referred to as the "Excise Tax"), then Executive shall be entitled
to receive an additional payment (a "Gross-Up Payment"), no later than twenty
(20) days following such Payment in an amount such that after payment by
Executive of all taxes (and any interest and penalties imposed with respect
thereto) including, without limitation, any income and employment taxes and
Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. All
federal, state and local income and employment tax calculations shall be based
upon the maximum marginal rates then in effect.
7.3 All determinations required to be made under Section 7.2 shall be made
by the Company's public accounting firm that is performing such services
immediately prior to the change in ownership or control giving
8 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
rise to the Excise Tax pursuant to Section 4999 of the Code. Such determination
shall be made no later than fifteen (15) days following any Payment. Such
accounting firm shall provide its determination to Executive and the Company. If
the accounting firm determines that no Excise Tax is payable by Executive, it
shall furnish Executive with a written opinion to such effect.
7.4 Notwithstanding the foregoing, in the event that the amount of
Executive's Excise Tax liability is subsequently determined to be greater than
the Excise Tax liability with respect to which the Gross-Up Payment under
Section 7.2 was made, the Company shall pay to Executive an additional Gross-Up
Payment with respect to such additional Excise Tax (and any interest and
penalties thereon) at the time that the amount of the actual Excise Tax
liability is finally determined.
7.5 Executive and the Company shall each reasonably cooperate with the
other in connection with any administrative or judicial proceedings concerning
the existence or amount of liability for Excise Tax and the expenses of any such
proceedings shall be borne solely by the Company.
8. Notices. All notices or communications hereunder shall be in writing,
addressed as follows:
To the Company:
AT&T Capital Corporation
44 Whippany Road
Morristown, NJ 07960
Attention: General Counsel
To Executive:
Mr. Thomas C. Wajnert
Young Road
Bernardsville, NJ 07924
Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was given,
provided that reasonable steps are taken to assure that notice is actually
received.
9. Separability; Legal Fees. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect. Except to the extent expressly provided
otherwise in the next sentence, each party shall bear the costs of any legal
fees and other fees and expenses which may be incurred in respect of enforcing
its respective rights under this Agreement. The Company shall pay the reasonable
fees and disbursements (not in excess of $75,000) of Executive's legal counsel
in connection with
9 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
the negotiation and execution of this Agreement and the other documents
contemplated hereby.
10. Assignment. This contract shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the assigns and
successors of the Company, but neither this Agreement nor any rights or
obligations hereunder shall be assignable or otherwise subject to hypothecation
by Executive (except by will or by operation of the laws of intestate
succession) or by the Company, except that the Company may assign this Agreement
to any successor (whether by merger, purchase or otherwise) to all or
substantially all of the stock, assets or businesses of the Company, if such
successor expressly agrees to assume the obligations of the Company hereunder.
11. Amendment. This Agreement may only be amended by written agreement of
the parties hereto.
12. Nondisclosure of Confidential Information; Non-Competition. (a)
Executive shall not, without the prior written consent of the Company, use,
divulge, disclose or make accessible to any other person, firm, partnership,
corporation or other entity any Confidential Information pertaining to the
business of the Company or any of its affiliates, except (i) while employed by
the Company, in the business of and for the benefit of the Company, or (ii) when
required to do so by a court of competent jurisdiction, by any governmental
agency having supervisory authority over the business of the Company, or by any
administrative body or legislative body (including a committee thereof) with
apparent jurisdiction to order Executive to divulge, disclose or make accessible
such information. For purposes of this Section 12(a), "Confidential Information"
shall mean non-public information concerning the financial data, strategic
business plans, product development (or other proprietary product data),
customer lists, marketing plans and other non-public, proprietary and
confidential information of the Company, or its subsidiaries (the "Restricted
Group") or customers, that, in any case, is not otherwise available to the
public (other than by Executive's breach of the terms hereof).(b) During the
period of his employment hereunder and for two years thereafter, Executive
agrees (subject to the provisions of Section 6.5) that, without the prior
written consent of the Company, (A) he will not, directly or indirectly, either
as principal, manager, agent, consultant, officer, advisor, stockholder,
partner, investor, lender or employee or in any other capacity, carry on, be
engaged in, advise or have any financial interest in, any business which is in
competition with the business of the Restricted Group and (B) he shall not, on
his own behalf or on behalf of any person, firm or company, directly or
indirectly, solicit or offer (except in the course of properly performing his
duties and responsibilities to the Company under this Agreement) employment to
any person who has been employed by the Restricted Group at any time during the
12 months immediately preceding such solicitation. (c) For purposes of this
Section 12, a business shall be deemed to be in competition with the Restricted
Group only if it is involved in the financing (including refinancing) of
purchases, sales, leases, rentals or other transactions in in competition with a
material part of the business of the Restricted Group. Nothing in this Section
12 shall be construed so as to preclude Executive from investing in any publicly
held company, provided Executive's
10 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
beneficial ownership of any class of such company's securities does not exceed
1% of the outstanding securities of such class or from being employed by, or
rendering services to, any entity that is not in competition with the Restricted
Group with respect to a substantial portion of the business of the entity and
its affiliates so long as Executive's employment and services relate solely to
activities that are not material to the overall business of his employer and
that are not in competition with the business of the Restricted Group. (d)
Executive and the Company agree that this covenant not to compete is a
reasonable covenant under the circumstances, and further agree that if in the
opinion of any court of competent jurisdiction such restraint is not reasonable
in any respect, such court shall have the right, power and authority to excise
or modify such provision or provisions of this covenant as to the court shall
appear not reasonable and to enforce the remainder of the covenant as so
amended. Executive agrees that any breach of the covenants contained in this
Section 12 would irreparably injure the Company. Accordingly, Executive agrees
that the Company may, in addition to pursuing any other remedies it may have in
law or in equity, cease making any payments otherwise required by this Agreement
and obtain an injunction against Executive from any court having jurisdiction
over the matter restraining any further violation of this Agreement by
Executive.
13. Beneficiaries; References. Executive shall be entitled to select (and
change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death, and may change such election, in either case by giving the
Company written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary, estate or other
legal representative. Any reference to the masculine gender in this Agreement
shall include, where appropriate, the feminine.
14. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section 14 are in addition to the survivorship provisions of
any other section of this Agreement.
15. Governing Law. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of New Jersey, without
reference to rules relating to conflicts of law.
16. Effect on Prior Agreements/Waiver of Severance. This Agreement contains
the entire understanding between the parties hereto and supersedes in all
respects any prior or other agreement or understanding between the Company or
any affiliate of the Company and Executive. In addition, as this Agreement
provides for the payment of annual bonus and severance, Executive waives any and
all rights he may have to any annual bonus or any severance payments under any
Company annual bonus or severance plan or program.
17. Withholding. The Company shall be entitled to withhold from payment any
amount of withholding required by law.
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FORM 10-Q for the Quarter
Ended September 30, 1996
18. Survival. Notwithstanding the expiration of the term of this Agreement,
the provisions of Section 12 hereunder shall remain in effect as long as is
necessary to give effect thereto.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original.
ANTIGUA ACQUISITION CORPORATION
By ____________________________
Name:
Title:
Thomas C. Wajnert
12 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Exhibit A
APPROVED CURRENT OUTSIDE BOARD/ASSOCIATION ACTIVITY
JLG Industries Inc. Corporate Director
NASDAQ listed
Equipment Leasing Trade Association Chairman
Association of America
Wharton Center for Financial Industry Research Center Trustee
Institutions
South Street Theatre Company Community Chairman
National Corporate Theatre Charitable President/Fund Director
ASP Educational Foundation Charitable Chairman
Morristown Memorial Hospital Community Director
---------------------------------------------
AT&T Foundation (trustee) to be resigned as of 9/1/96
AT&T Universal Card Services Corp. (director) to be resigned as of 9/1/96.
13 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Exhibit B
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (hereinafter called this "Agreement"),
dated as of September 30, 1996, between Antigua Acquisition Corporation, a
Delaware corporation ("Merger Sub"), and Thomas C. Wajnert (the "Purchaser").
RECITALS
WHEREAS, Merger Sub has entered into an Agreement and Plan of
Merger, dated as of June 5, 1996, as amended (the "Merger Agreement"), among
AT&T Capital Corporation, a Delaware corporation (the "Company"), AT&T Corp., a
New York corporation, Hercules Limited, a Cayman Islands company ("Holdings"),
and Merger Sub, which is a wholly owned subsidiary of Holdings, providing for
the merger (the "Merger") of Merger Sub with and into the Company, after which
the Company will continue its corporate existence as the surviving corporation
(the "Surviving Corporation");
WHEREAS, Merger Sub was recently incorporated for the purpose of
merging with and into the Company;
WHEREAS, in connection with the Merger, Merger Sub proposes to
agree to sell to a limited number of management investors in accordance with the
terms hereof immediately prior to the Merger, in exchange for certain shares of
the Company presently held by such management investors, shares of its Common
Stock, par value $.01 per share ("Merger Sub Common Stock"), each of which will
be converted at the effective time of the Merger (the "Effective Time") pursuant
to the Merger Agreement into one share of Common Stock, par value $.01 per
share, of the Surviving Corporation ("Surviving Corporation Common Stock");
WHEREAS, Merger Sub also intends to grant following the Merger
certain options to purchase shares of Surviving Corporation Common Stock, upon
certain terms and subject to certain conditions, to such management investors;
and
WHEREAS, this Agreement is one of several agreements (such
agreements other than this Agreement being herein referred to collectively as
"Other Purchasers' Agreements") which have been, or which in the future will be,
entered into between the Company and other individuals who are or will be key
employees of the Company or one of its subsidiaries (collectively, the "Other
Purchasers").
NOW, THEREFORE, to implement the foregoing and in consideration
of the premises and of the mutual agreements contained herein, the parties
hereto agree as follows:
1. Pre-Merger Exchange of Stock.
(a) Subject to the terms and conditions of this Agreement, the
Purchaser agrees to purchase from Merger Sub, and Merger Sub agrees to sell
14 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
to the Purchaser at the First Closing described in Section 1(b) hereof, 560,511
shares (the "Merger Sub Shares") (which number of shares equals the product of
4.5 and the number of Pre-Merger Shares set forth below) of Merger Sub Common
Stock, for a purchase price of $10.00 per share, payable by the delivery to
Merger Sub of 124,558 shares (the "Pre-Merger Shares") of Common Stock, par
value $.01 per share, of the Company purchased by the Purchaser pursuant to the
AT&T Capital Corporation 1993 Leveraged Stock Purchase Plan (the "Stock Purchase
Plan").
(b) The closing of the purchase and sale of the Merger Sub Shares
(the "Closing") shall take place on the Closing Date (as defined in the Merger
Agreement) immediately prior to the Effective Time and in the same location as
the Closing (as defined under the Merger Agreement). At the Closing, (i) the
Purchaser will deliver to Merger Sub the certificate or certificates
representing the Pre-Merger Shares, duly endorsed in blank or accompanied by
stock powers executed in blank with the Purchaser's signature guaranteed by a
member of the Medallion Signature Guarantee Program, and with all necessary
stock transfer stamps affixed, representing payment in full for the Merger Sub
Shares and (ii) Merger Sub will deliver to the Purchaser a duly executed and
issued stock certificate, registered in the Purchaser's name and representing
the Merger Sub Shares.
(c) Upon the Closing, the Pre-Merger Shares exchanged pursuant
hereto shall be deemed to be owned by the Parent Companies (as defined in the
Merger Agreement) and, as contemplated by Section 4.1(c) of the Merger
Agreement, at the Effective Time shall cease to be outstanding, be cancelled and
retired without payment of any consideration therefor and shall cease to exist.
(d) The shares of Surviving Corporation Common Stock into which
the Merger Sub Shares will be converted at the Effective Time pursuant to the
Merger Agreement are sometimes hereinafter referred to as the "Investment
Shares."
2. Conditions to the Obligations of the Parties at the
Closing.
The obligations of the parties hereto to consummate the purchase
and sale contemplated by Section 1 hereof shall be subject to the condition
that, at or prior to the Closing:
(i) The Company and the Purchaser shall have, to the extent
necessary, amended the terms of the stock purchase agreement under the Stock
Purchase Plan pursuant to which the Purchaser purchased the Pre-Merger Shares
from the Company to permit the transfer of the Pre-Merger Shares contemplated by
Section 1 hereof;
(ii) The Company and the Purchaser shall have amended the terms
of the pledge agreement providing for the pledge of the Pre-Merger Shares
substantially in the form of the amendment attached hereto as Exhibit E, and
have made mutually satisfactory arrangements, to permit the release of the
Pre-Merger Shares for the purpose of the exchange contemplated by Section 1
hereof and to permit the substitution of the
15 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Merger Sub Shares as "Pledged Property" under the terms of such pledge
agreement; and
(iii) To the extent necessary, the Company shall have agreed that
the release of the Pre-Merger Shares and the substitution of the Merger Sub
Shares as pledged property therefor shall not require any prepayment under the
Purchaser's promissory note issued pursuant to the Stock Purchase Plan (the
"Promissory Note").
3. Issuance of Options.
(a) Subject to the terms and conditions of this Agreement, as
promptly as practical following the Effective Time the Surviving Corporation
shall grant to the Purchaser an option or options to purchase Surviving
Corporation Common Stock (the "Options") at an exercise price of $10.00 per
share pursuant to, in accordance with, and subject to the terms and conditions
contained in, the AT&T Capital Corporation 1996 Long Term Incentive Plan (the
"LTIP") and the Stock Option Agreement attached hereto as Exhibit A (the "Stock
Option Agreement").
(b) The Surviving Corporation and the Purchaser shall execute and
deliver to each other copies of the Stock Option Agreement concurrently with the
issuance of the Options.
4. Restriction on Transfer.
(a) Except for transfers permitted by clauses (y) and (z) of
Section 5(a) hereof or a sale of shares of Stock (as hereinafter defined)
pursuant to an effective registration statement under the Act filed by the
Surviving Corporation or pursuant to the Stock Purchase Agreement or the Sale
Participation Agreement (each as hereinafter defined), the Purchaser agrees that
he or she will not transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any shares of Stock at any time prior to the tenth anniversary of the
date of the Effective Time, other than in connection with a sale in the public
market (subject to the provisions of Rule 144 where applicable) from and after a
sale of shares of Surviving Corporation Common Stock to the public pursuant to a
registration statement under the Act that has been declared effective by the SEC
(other than a registration statement on Form S-4 or Form S-8, or any successor
or other forms promulgated for similar purposes, or a registration statement in
connection with an offering to employees of the Surviving Corporation and its
subsidiaries) that results in an active trading market in the Surviving
Corporation Common Stock (the "QPO"), provided that such sale in the public
market shall be subject to such blackAout period and/or other restrictions on
such sale as shall be reasonably requested by any underwriters in offerings of
the securities of the Surviving Corporation in order to insure the success of
such offerings and provided further that the number of shares that may be sold
in each one-year period following the QPO will be limited to the greater of (i)
25% of the total number of shares of Stock, on a fully diluted basis, held by
the Purchaser immediately following the initial QPO and (ii) that number of
shares of Surviving Corporation Common Stock underlying the Options or any other
stock options issued by the Surviving Corporation held by the Purchaser as to
which (A) pursuant to the terms of such options, the Purchaser's right to
purchase such stock would
16 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
expire during such one-year period and (B) such options are actually exercised
by the Purchaser.
(b) In addition to the foregoing Section 4(a) and notwithstanding
the exceptions thereto, the Purchaser further agrees that he or she will not at
any time transfer, sell, assign, pledge, hypothecate or otherwise dispose of any
shares of Stock at any time, directly or indirectly, to any competitor or
prospective competitor of the Company or to any affiliate of such a person,
other than:
(i) in connection with a sale to a third party pursuant to the
Stock Purchase Agreement or the Sale Participation Agreement;
(ii) in an underwritten public offering upon the exercise of the
rights provided for under the Registration Rights Agreement (as hereinafter
defined); or
(iii) pursuant to a sale effected (when otherwise permitted under
this Agreement) through an open market, nondirected broker's transaction in
which the Purchaser as seller does not know the buyer is a competitor or
prospective competitor.
(c) No transfer of any such shares in violation hereof shall be
made or recorded on the books of the Company and any such attempted transfer
shall be void and of no effect.
(d) Notwithstanding the foregoing or the terms of the Stock
Purchase Agreement or the Sale Participation Agreement, if (i) at any time, the
Purchaser experiences an unexpected personal hardship or (ii) following the
fifth anniversary of the Effective Time, the Purchaser desires liquidity for his
or her Investment Shares for any personal reason, the Purchaser may deliver a
written request to the Compensation Committee of the Board of Directors of the
Surviving Corporation (directed to the attention of the Secretary of the
Corporation) that the Purchaser be permitted to sell some or all of his or her
Investment Shares. Although it is Merger Sub's present intention to make
reasonable efforts to provide liquidity to the Purchaser in such circumstances,
nothing contained in this Agreement should be construed as establishing any
obligation on the Surviving Corporation or any of its Affiliates to purchase any
Investment Shares from the Purchaser, other than the Purchaser's rights pursuant
to the Stock Purchase Agreement entered into with Nomura International plc, a
public limited company incorporated under the laws of England and Wales
("NIplc"). Any decision to purchase, or to arrange a purchase of, Surviving
Corporation Common Stock from the Purchaser under such circumstances will be
made in the sole discretion of the Surviving Corporation and its Affiliates on a
case-by-case basis, based upon the facts and circumstances that exist at the
time of the Purchaser's request.
(e) If on or before the tenth anniversary of the Effective Time
there has been neither a Change of Control (as defined in the Stock Option
Agreement) nor sales to the public constituting a QPO (as defined in the Stock
Option Agreement) representing aggregate Offering Percentages (as defined in the
Stock Option Agreement) of at least 50%, the Surviving Corporation will use its
best efforts to arrange, at its election, either a
17 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Proposed Sale (as defined in the Sale Participation Agreement) that will
constitute a Change of Control (in connection with which, under the Sale
Participation Agreement, the Purchaser and certain other persons will be
entitled to certain sale participation rights with respect to all Investment
Shares then held) or an offering or offerings of shares of Surviving Corporation
Common Stock such that a QPO has occurred and the aggregate Offering Percentages
represented by sales to the public of Surviving Corporation Common Stock is at
least 50%, in either case within six months of the tenth anniversary of the
Effective Time. The six-month period set forth in the preceding sentence may be
extended by the Surviving Corporation, with the consent of the holders of at
least 60% of the aggregate of the Investment Shares and the Investment Shares
(as defined in the Other Purchasers' Agreements) then outstanding (without
regard to the ability of stockholders to direct the vote of the trustee under
the Voting Trust Agreement (as hereinafter defined)); provided that any such
extension or series of extensions shall not exceed a period of two years in the
aggregate.
5. Purchaser's Representations, Warranties and
Agreements.
(a) The Purchaser hereby represents and warrants that he is
acquiring the Merger Sub Shares and, at the time of exercise, the Surviving
Corporation Common Stock issuable upon exercise of the Options (collectively,
the "Stock") for investment for his or her own account and not with a view to,
or for resale in connection with, the distribution or other disposition thereof.
The Purchaser agrees and acknowledges that he or she will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of ("Transfer") any shares of the Stock unless such Transfer complies
with Section 4 of this Agreement and (i) such Transfer is pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
or the rules and regulations in effect thereunder (the "Act") or (ii) counsel
for the Purchaser (which shall be reasonably satisfactory to the Company) shall
have furnished the Company with an opinion, satisfactory in form and substance
to the Company, that no such registration is required because of the
availability of an exemption from registration under the Act. Notwithstanding
the foregoing, Merger Sub acknowledges and agrees that any of the following
transfers are deemed to be in compliance with the Act and this Agreement and no
opinion of counsel is required in connection therewith: (x) a transfer made
pursuant to Section 4 hereof, (y) a transfer upon the death of the Purchaser to
his or her executors, administrators, testamentary trustees, legatees or
beneficiaries (the "Purchaser's Estate") or a transfer to the executors,
administrators, testamentary trustees, legatees or beneficiaries of a person who
has become a holder of Stock in accordance with the terms of this Agreement,
provided that it is expressly understood that any such transferee shall be bound
by the provisions of this Agreement and (z) a transfer made after the date of
the purchase of the Stock in compliance with the federal securities laws to a
trust or custodianship the beneficiaries of which may include only the
Purchaser, his or her spouse or the Purchaser's lineal descendants (a
"Purchaser's Trust") or a transfer made to such a trust by a person who has
become a holder of Stock in accordance with the terms of this Agreement,
provided, in each such case under clause (z), that such transfer is made
expressly subject to this
18 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Agreement and that the transferee agrees in writing to be bound by the terms and
conditions hereof.
(b) The certificate (or certificates) representing the Stock
shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER,
SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF THE SUBSCRIPTION AGREEMENT DATED AS OF SEPTEMBER 30, 1996 BETWEEN
AT&T CAPITAL CORPORATION, AS SUCCESSOR BY MERGER TO ANTIGUA ACQUISITION
CORPORATION (THE "CORPORATION"), AND THE PURCHASER NAMED ON THE FACE HEREOF (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION). EXCEPT AS
OTHERWISE PROVIDED IN SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE
MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF (I) THE CORPORATION
HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT
SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS
EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT OR THE RULES AND REGULATIONS
IN EFFECT THEREUNDER, AND IN COMPLIANCE WITH APPLICABLE PROVISIONS OF STATE
SECURITIES LAWS, AND (II) IF THE HOLDER IS A CITIZEN OR RESIDENT OF ANY COUNTRY
OTHER THAN THE UNITED STATES, OR THE HOLDER DESIRES TO EFFECT ANY SUCH
TRANSACTION IN ANY SUCH COUNTRY, THE CORPORATION HAS BEEN FURNISHED WITH A
SATISFACTORY OPINION OR OTHER ADVICE OF COUNSEL FOR THE HOLDER THAT SUCH
TRANSACTION WILL NOT VIOLATE THE LAWS OF SUCH COUNTRY."
(c) The Purchaser acknowledges that he or she has been advised
that (i) the Stock has not been registered under the Act, (ii) except as set
forth herein and in the Stock Purchase Agreement and the Sale Participation
Agreement, the Stock must be held indefinitely and the Purchaser must continue
to bear the economic risk of the investment in the Stock unless it is
subsequently registered under the Act or an exemption from such registration is
available, (iii) it is not anticipated that there will be any public market for
the Stock, (iv) Rule 144 promulgated under the Act is not currently available
with respect to the sales of any securities of the Company, and the Company has
made no covenant to make such Rule available (except as provided in Section 7(b)
hereof), (v) when and if shares of the Stock may be disposed of without
registration in reliance on Rule 144, such disposition can be made only in
limited amounts in accordance with the terms and conditions of such Rule, (vi)
if the Rule 144 exemption is not available, public sale without registration
will require compliance with Regulation A or some other exemption under the Act,
(vii) a restrictive legend in the form heretofore set forth shall be placed on
the certificates representing the Stock and (viii) a notation shall be made in
the appropriate records of the Company indicating that the Stock is subject to
restriction on Transfer and, if the Company should at some time in the future
engage the services of a stock transfer agent, appropriate stop transfer
restrictions will be issued to such transfer agent with respect to the Stock.
(d) If any shares of the Stock are to be disposed of in
accordance with Rule 144 under the Act or otherwise, the Purchaser shall
19 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
promptly notify the Company of such intended disposition and shall deliver to
the Company at or prior to the time of such disposition such documentation as
the Company may reasonably request in connection with such sale and, in the case
of a disposition pursuant to Rule 144, shall deliver to the Company an executed
copy of any notice on Form 144 required to be filed with the Securities and
Exchange Commission (the "SEC").
(e) The Purchaser agrees that, if any shares of the capital stock
of the Company are offered to the public pursuant to an effective registration
statement under the Act, the Purchaser will not effect any public sale or
distribution of any shares of the Stock not covered by such registration
statement within 7 days prior to, or within 180 days after, the effective date
of such registration statement (or such lesser period as the managing
underwriter of any such offering may permit), unless otherwise agreed to in
writing by the Company.
(f) The Purchaser represents and warrants that (i) he or she has
received and reviewed a Private Placement Memorandum (the "Private Placement
Memorandum") relating to the Stock and the documents referred to therein,
certain of which documents set forth the rights, preferences and restrictions
relating to the Stock, (ii) he or she has been given the opportunity to obtain
any additional information or documents, to consult with his or her legal,
financial and other advisors and to ask questions and receive answers about such
documents, Merger Sub, the Company and the business and prospects of the Company
and the Surviving Corporation that he or she deems necessary to evaluate the
merits and risks related to his or her investment in the Stock and to verify the
information contained in the Private Placement Memorandum, and he or she has
relied solely on the information contained in the Private Placement Memorandum
and (iii) he or she acknowledges and agrees that neither Merger Sub nor the
Company, nor any other person, makes any representation or warranty with respect
to any such information other than as, and solely to the extent, expressly set
forth in this Agreement.
(g) The Purchaser further represents and warrants that (i) his or
her financial condition is such that he or she can afford to bear the economic
risk of holding the Stock for an indefinite period of time and has adequate
means for providing for his or her current needs and personal contingencies,
(ii) he or she can afford to suffer a complete loss of his or her investment in
the Stock, (iii) all information which he or she has provided to Merger Sub or
the Company concerning himself or herself and his or her financial position is
correct and complete as of the date of this Agreement, (iv) he or she
understands and has taken cognizance of all risk factors related to the purchase
of the Stock, including those set forth in the Private Placement Memorandum
referred to above, and (v) his or her knowledge and experience in financial and
business matters are such that he or she is capable of evaluating the merits and
risks of his or her purchase of the Stock as contemplated by this Agreement.
6. Stock Issued to the Purchaser Upon Exercise of
Stock Options.
The Surviving Corporation may from time to time grant to the
Purchaser, in addition to the Options, options to purchase additional
20 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
shares of Surviving Corporation Common Stock at $10.00 per share or at a
different option exercise price under the LTIP or another stock option or
incentive plan, or shares of stock under the LTIP or another incentive plan or
otherwise. The term "Stock" as used in this Agreement shall include all shares
of Surviving Corporation Common Stock purchased by the Purchaser pursuant to
this Agreement or issued to the Purchaser by the Surviving Corporation upon
exercise of the Options and of any other stock options held by the Purchaser and
any other Surviving Corporation Common Stock otherwise acquired by the Purchaser
at any time when this Agreement is in effect.
7. Merger Sub's Representations, Warranties and
Agreements.
(a) Merger Sub represents and warrants to the Purchaser that (i)
this Agreement has been duly authorized, executed and delivered by Merger Sub
and (ii) the Stock, when issued and delivered in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable.
(b) If the Surviving Corporation shall have engaged in a QPO, (i)
the Surviving Corporation will file the reports required to be filed by it under
the Act and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations adopted by the SEC thereunder, to the
extent required from time to time to enable the Purchaser to sell shares of
Stock, to the extent otherwise permitted under this Agreement, within the
limitations of the exemptions provided by (A) Rule 144 under the Act, as such
Rule may be amended from time to time, or (B) any similar rule or regulation
hereafter adopted by the SEC and (ii) the Surviving Corporation shall use
reasonable efforts to register such shares of Stock, to the extent not
previously registered under the Act and to the extent required from time to time
to enable the Purchaser to sell shares of Stock, to the extent otherwise
permitted under this Agreement, without being subject to any minimum holding
period for such Stock under (x) Rule 144 under the Act, as such Rule may be
amended from time to time, or (y) any similar rule or regulation hereafter
adopted by the SEC. Notwithstanding anything contained in this Section 7(b), the
Company may deregister Stock under Section 12 of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder. Nothing in this Section 7(b) shall be deemed to limit in any manner
the restrictions on sales of Stock contained in this Agreement.
8. "Piggyback" Registration Rights.
(a) For so long as any of the shares of Stock held by the
Purchaser, the Purchaser's Trust or the Purchaser's Estate remain unregistered,
the Purchaser hereby agrees to be bound by all of the terms, conditions and
obligations of the Registration Rights Agreement of even date herewith (the
"Registration Rights Agreement") among the Company, Holdings and the other
persons who become parties thereto and, subject to the limitations set forth in
this Section 8, shall have all of the rights and privileges of the Registration
Rights Agreement, in each case as if the Purchaser were an original party (other
than Merger Sub); provided,
21 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
however, that the Purchaser shall not have any rights to request registration
under Sections 3 ory4 of the Registration Rights Agreement; provided further,
that the Purchaser shall have no rights to request registration under the
Registration Rights Agreement to the extent that the Purchaser would be able to
sell, to the extent otherwise permitted under this Agreement, shares of Stock
pursuant to Rule 144 under the Act or another available exception to
registration; and provided further, that the Purchaser shall not be bound by any
amendments to the Registration Rights Agreement unless the Purchaser consents
thereto. Notwithstanding anything to the contrary contained in the Registration
Rights Agreement, the Purchaser's rights and obligations under the Registration
Rights Agreement shall be subject to the limitations and additional obligations
set forth in this Section 8, including, without limitation, the limitations on
registration set forth in Section 8(c) hereof. All shares of Stock held by the
Purchaser, the Purchaser's Trust or the Purchaser's Estate shall be deemed to be
"Registrable Securities" as defined in the Registration Rights Agreement.
(b) The Surviving Corporation will promptly notify the Purchaser
in writing (a "Notice") upon the Surviving Corporation's receipt of a written
request ("Holdings' Request") from Holdings requesting that the Surviving
Corporation effect the registration under the Act of all or part of Holdings'
Registrable Securities (as defined in the Registration Rights Agreement)
("Holdings' Requested Registration") pursuant to Section 4(a) of the
Registration Rights Agreement. If within 15 days of the receipt by the Purchaser
of such Notice, the Surviving Corporation receives from the Purchaser, the
Purchaser's Trust or the Purchaser's Estate a written request (a "Purchaser's
Request") (which request will be irrevocable unless otherwise mutually agreed to
in writing by the Purchaser and the Surviving Corporation) that the Surviving
Corporation effect the registration under the Act of all or part of the
Registrable Securities (as defined in the Registration Rights Agreement) held by
the Purchaser, the Purchaser's Trust or the Purchaser's Estate, as the case may
be, and specifying the amount and intended method of disposition thereof (the
"Purchaser's Requested Registration"), the Surviving Corporation will, as
expeditiously as possible, use reasonable efforts to effect the registration
under the Act of the Purchaser's Requested Registration so as to permit the
disposition (in accordance with the intended method thereof as aforesaid) of the
Purchaser's Registrable Securities so to be registered; provided, however, that
the Company shall have no obligation to register the Purchaser's Registrable
Securities pursuant to this Section 8(b) unless the Surviving Corporation has
effected Holdings' Requested Registration in response to the Holdings' Request
in accordance with Section 4(d) of the Registration Rights Agreement; and
provided further that for each such registration, only one Purchaser's Request,
which shall be executed by the Purchaser, the Purchaser's Trust or the
Purchaser's Estate, as the case may be, may be submitted for all of the
Purchaser's Registrable Securities.
(c) The maximum number of the Purchaser's shares of Stock that
the Surviving Corporation will be required to register under the Act pursuant to
a Purchaser's Request will be the lowest of (i) that number of shares of Stock
equal to the product of the total number of all Investment Shares purchased by
the Purchaser under this Agreement multiplied by a fraction, the numerator of
which is the number of shares of Surviving
22 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Corporation Common Stock to be registered in such registration on behalf of
Holdings and the denominator of which is the total number of shares of Surviving
Corporation Common Stock held by Holdings immediately following the Effective
Time, (ii) 25% of the total number of Investment Shares purchased by the
Purchaser under this Agreement and (iii) the Purchaser's share (pro rata based
upon the aggregate number of Registrable Securities which the Purchaser and all
other persons having registration rights under the Registration Rights Agreement
(other than Holdings) have requested to be registered) of the maximum number of
Registrable Securities which the Surviving Corporation can register pursuant to
this Section 8 and Section 4 of the Registration Rights Agreement without, in
the good faith view of the underwriters, adverse effect on the offering. The
maximum number of shares of Stock that the Surviving Corporation will be
required to register under the Act pursuant to all Purchaser's Requests in the
aggregate will be that number that equals 25% of the total number of Investment
Shares purchased by the Purchaser under this Agreement.
(e) Upon delivering a Purchaser's Request the Purchaser will, if
requested by the Surviving Corporation, execute and deliver a custody agreement
and power of attorney in form and substance satisfactory to the Surviving
Corporation with respect to the shares of Stock to be registered pursuant to
this Section 8 (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that the
Purchaser will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares of Stock (duly endorsed in blank by the registered owner or owners
thereof or accompanied by duly executed stock powers in blank) and irrevocably
appoint said custodian and attorney-in-fact as the Purchaser's agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on the Purchaser's behalf with respect to the
matters specified therein.
(f) The Purchaser agrees that he will execute such other
agreements as the Surviving Corporation may reasonably request to further
evidence the provisions of this Section 8.
9. Rights to Negotiate Repurchase Price.
Nothing in this Agreement, the Stock Purchase Agreement or the
Sale Participation Agreement shall be deemed to restrict or prohibit the
Surviving Corporation from purchasing shares of Stock or options from the
Purchaser, at any time, upon such terms and conditions, and for such price, as
may be mutually agreed upon between the parties hereto, (i) whether or not at
the time of such purchase circumstances exist which specifically grant any
persons the right to purchase, or the Purchaser the right to sell, such shares
and (ii) notwithstanding the fact that none of this Agreement, the Stock
Purchase Agreement or the Sale Participation Agreement provide the Surviving
Corporation or the Purchaser with any rights with respect to the repurchase by
the Surviving Corporation of options.
10. Covenant Regarding 83(b) Election.
Except as the Surviving Corporation may otherwise agree in
writing, the Purchaser hereby covenants and agrees that he or she will make
23 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
an election provided pursuant to Treasury Regulation 1.83A2 with respect to the
Investment Shares; and the Purchaser further covenants and agrees that he or she
will furnish the Surviving Corporation with copies of the forms of election the
Purchaser files within 30 days after the date hereof.
11. Notice of Change of Beneficiary.
Immediately prior to any Transfer of Stock to a Purchaser's
Trust, the Purchaser shall provide the Surviving Corporation with a copy of the
instruments creating the Purchaser's Trust and with the identity of the
beneficiaries of the Purchaser's Trust. The Purchaser shall notify the Surviving
Corporation immediately prior to any change in the identity of any beneficiary
of the Purchaser's Trust.
12. Recapitalizations, etc.
The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Stock or the Options, to any and all shares
of capital stock of the Surviving Corporation or any capital stock, partnership
units or any other security evidencing ownership interests in any successor or
assign of the Surviving Corporation (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for, or
substitution of the Stock or the Options, by reason of any stock dividend,
split, reverse split, combination, recapitalization, liquidation,
reclassification, merger, consolidation or otherwise.
13. Purchaser's Employment by the Surviving
Corporation.
Nothing contained in this Agreement or in any other agreement
entered into by Merger Sub or any other person and the Purchaser
contemporaneously with the execution of this Agreement (i) obligates the
Surviving Corporation or any subsidiary of the Surviving Corporation to employ
the Purchaser in any capacity whatsoever or (ii) prohibits or restricts the
Surviving Corporation (or any such subsidiary) from terminating the employment,
if any, of the Purchaser at any time or for any reason whatsoever, with or
without cause, and the Purchaser hereby acknowledges and agrees that, except to
the extent that certain information, if any, with respect to his or her
employment has been delivered to the Purchaser in writing, neither Merger Sub
nor the Company, nor any other person, has made any representations or promises
whatsoever to the Purchaser concerning the Purchaser's employment or continued
employment by the Surviving Corporation or any of the terms and conditions of
such employment.
14. State and Foreign Securities Laws.
Merger Sub hereby agrees to use its best efforts to comply with
all state securities or "blue sky" laws and all foreign securities laws which
might be applicable to the sale of the Stock and the issuance of the Options to
the Purchaser.
15. Agreement to Extend Promissory Notes of
the Purchaser.
24 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Merger Sub and the Purchaser hereby agree that, as promptly as
practicable following, and effective as of, the Effective Time, the Surviving
Corporation and the Purchaser shall amend the Promissory Note substantially in
the form of the amendment attached hereto as Exhibit F. Merger Sub also agrees
to extend further the Maturity Date (as defined in the Promissory Note) to the
extent that, at the time that such Maturity Date would otherwise occur, the then
existing restrictions on transferability under this Agreement would not permit
the sale of that number of shares of Stock such that the proceeds from such sale
are an amount at least equal to the remaining principal balance and accrued
interest on the Promissory Note; provided that the Surviving Corporation shall
not be obligated to extend such Maturity Date at any time that there are no
restrictions on the number of shares of Stock that may be sold.
16. Other Agreements.
Contemporaneously with the execution of this Agreement, the
Purchaser is entering into (i) the Stock Purchase Agreement in the form attached
hereto as Exhibit B (the "Stock Purchase Agreement") with Merger Sub and NIplc,
(ii) the Sale Participation Agreement in the form attached hereto as Exhibit C
(the "Sale Participation Agreement") with NIplc and (iii) the Voting Trust
Agreement in the form attached hereto as Exhibit D (the "Voting Trust
Agreement") with Thomas C. Wajnert, not individually but solely in his capacity
as trustee under the Voting Trust Agreement, Merger Sub and the Other
Purchasers.
17. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 5(a) hereof, such transferee shall be deemed the Purchaser
hereunder; provided, however, that no transferee (including without limitation,
transferees referred to in Section 5(a) hereof) shall derive any rights under
this Agreement unless and until such transferee has delivered to the Surviving
Corporation a valid undertaking and becomes bound by the terms of this
Agreement.
18. Amendment.
This Agreement may be amended only by a written instrument signed
by the parties hereto.
19. Applicable Law.
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Purchaser, with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any court of competent jurisdiction in the State of New Jersey, as
the Surviving Corporation may elect in its sole discretion, and the Purchaser
hereby submits to the non-exclusive jurisdiction of such courts for the purpose
of any such suit, action,
25 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
proceeding or judgment. By the execution and delivery of this Agreement, the
Purchaser appoints the Secretary of the Surviving Corporation, at the executive
offices of the Surviving Corporation in Morristown, New Jersey (or such other
place within the State of New Jersey as may be designated for such purpose), as
his or her agent upon which process may be served in any such suit, action or
proceeding. Service of process upon such agent, together with notice of such
service given to the Purchaser in the manner provided in Section 21 hereof,
shall be deemed in every respect effective service of process upon the Purchaser
in any suit, action or proceeding. Nothing herein shall in any way be deemed to
limit the ability of the Surviving Corporation to serve any such writs, process
or summonses in any other manner permitted by applicable law or to obtain
jurisdiction over the Purchaser, in such other jurisdictions and in such manner,
as may be permitted by applicable law. The Purchaser hereby irrevocably waives
any objections which he or she may now or hereafter have to the laying of the
venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in any court of competent jurisdiction in the State of New
Jersey, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum. No suit, action or proceeding against the Surviving
Corporation with respect to this Agreement may be brought in any court, domestic
or foreign, or before any similar domestic or foreign authority other than in a
court of competent jurisdiction in the State of New Jersey, and the Purchaser
hereby irrevocably waives any right which he or she may otherwise have had to
bring such an action in any other court, domestic or foreign, or before any
similar domestic or foreign authority. Merger Sub, on behalf of itself and the
Surviving Corporation, hereby submits to the jurisdiction of such courts for the
purpose of any such suit, action or proceeding.
20. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to
United States dollars and (ii) the word "or" is not exclusive. If any provision
of this Agreement shall be declared illegal, void or unenforceable by any court
of competent jurisdiction, the other provisions shall not be affected, but shall
remain in full force and effect.
21. Notices.
All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or certified
mail, return receipt requested, postage prepaid, to the party to whom it is
directed:
(i) If to Merger Sub or the Surviving Corporation, to it at the
following address:
Antigua Acquisition Corporation
c/o AT&T Capital Corporation
26 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
or
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: Vice President - Human Resources
with a copy to:
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: General Counsel
(ii) If to the Purchaser, to him at the address set forth below
under his signature;
or at such other address as either party shall have specified by notice in
writing to the other.
Any notice which is required to be given to the Purchaser shall, if the
Purchaser is then deceased, be given to the Purchaser's personal representative
if such representative has previously informed the Surviving Corporation of his
or her status and address by written notice under this Section 21.
22. Confidential Information.
(a) The Purchaser will not disclose or use at any time, any
Confidential Information (as hereinafter defined) of which the Purchaser is or
becomes aware, whether or not such information is developed by the Purchaser,
except to the extent that such disclosure or use is directly related to and
required by the Purchaser's performance of duties, if any, assigned to the
Purchaser by the Surviving Corporation. As used in this Agreement, the term
"Confidential Information" means information that is not generally known to the
public and that is used, developed or obtained by the Surviving Corporation or
its subsidiaries in connection with its business, including but not limited to
(i) products or services, (ii) fees, costs and pricing structures, (iii)
information regarding business and strategic plans, including, without
limitation, any potential corporate or business transactions or other corporate
developments, (iv) computer software, including operating systems, applications
and program listings, (v) flow charts, manuals and documentation, (vi) data
bases, (vii) accounting and business methods, (viii) inventions, devices, new
developments, methods and processes, whether patentable or unpatentable and
whether or not reduced to practice, (ix) customers and clients and customer or
client lists, (x) other copyrightable works, (xi) all technology and trade
secrets, and (xii) all similar and related information in whatever form.
Confidential Information will not include any information that has been
generally available to the public prior to the date the Purchaser discloses or
uses such information. The Purchaser acknowledges and agrees that all
copyrights, works, inventions, innovations, improvements, developments, patents,
trademarks and all similar or related rights and information which relate to the
actual or anticipated business of the Surviving Corporation and its subsidiaries
(including its predecessors) and
27 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
conceived, developed or made by the Purchaser while employed by the Company, the
Surviving Corporation or their subsidiaries belong to the Surviving Corporation.
The Purchaser will perform all actions reasonably requested by the Surviving
Corporation (whether during or after the Purchaser's employment by the Surviving
Corporation or any of its subsidiaries) to establish and confirm such ownership
at the Surviving Corporation's expense (including without limitation
assignments, consents, powers of attorney and other instruments).
(b) In the event that the Purchaser is requested or legally
required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Confidential Information, the Purchaser
shall provide the Surviving Corporation with prompt notice of any such request
or requirement so that the Surviving Corporation may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of Section
22(a) hereof. If, in the absence of a protective order or other remedy or the
receipt of a waiver by the Surviving Corporation, the Purchaser is nonetheless,
in the opinion of counsel, required to disclose Confidential Information, the
Purchaser may, without liability hereunder, disclose only that portion of the
Confidential Information that in the opinion of his or her counsel is legally
required to be disclosed; provided that the Purchaser attempts to preserve the
confidentiality of the Confidential Information, including, without limitation,
by cooperating with the Surviving Corporation to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information.
(c) Notwithstanding Section 22(a) hereof, if at any time a court
holds that the restrictions stated in such Section 22(a) are unreasonable or
otherwise unenforceable under circumstances then existing, the parties hereto
agree that the maximum period or scope determined to be reasonable under such
circumstances by such court will be substituted for the stated period or scope.
Because the Purchaser's services are unique and because the Purchaser has had
access to Confidential Information, the parties hereto agree that money damages
will be an inadequate remedy for any breach of this Agreement. In the event of a
breach or threatened breach of this Agreement, the Surviving Corporation or its
successors or assigns may, in addition to other rights and remedies existing in
their favor, apply to any
28 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
court of competent jurisdiction for specific performance and/or injunctive
relief in order to enforce, or prevent any violations of, the provisions hereof
(without the posting of a bond or other security).
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ANTIGUA ACQUISITION CORPORATION
By: ___________________________
Name:
Title:
________________________________
Purchaser
________________________________
________________________________
Address of Purchaser
29 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
EXHIBIT C
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of October 1, 1996 is made by and
between AT&T Capital Corporation, a Delaware corporation hereinafter referred to
as the "Company", and Thomas C. Wajnert, an employee of the Company or a
Subsidiary (as defined below) of the Company, hereinafter referred to as
"Optionee".
WHEREAS, the Company wishes to afford the Optionee the
opportunity to purchase shares of its $.01 par value Common Stock ("Common
Stock");
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated by reference and made a
part of this Agreement; and
WHEREAS, the Board of Directors of the Company or the Committee
(as hereinafter defined), appointed to administer the Plan, has determined that
it would be to the advantage and best interest of the Company and its
stockholders to grant the options provided for herein to the Optionee as an
incentive for increased efforts during his term of office with the Company or
its Subsidiaries, and has advised the Company thereof and instructed the
undersigned officer to issue said Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they
shall have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
Section 1.1 - Act
"Act" shall mean the Securities Act of 1933, as amended, or any
successor law.
Section 1.2 - Affiliate
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. Solely for purposes of this Agreement, GRS Holding Company Limited and
Babcock & Brown, Inc. and their respective Affiliates shall be deemed to be
Affiliates of Nomura (as defined below).
30 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Section 1.3 - Board of Directors
"Board of Directors" means the Board of Directors of the Company.
Section 1.4 - Cause
"Cause" shall have the meaning set forth in the Employment
Agreement.
Section 1.5 - Change of Control
"Change of Control" shall mean (i) any transaction (including,
without limitation, a merger, consolidation or reorganization, or a sale of
derivative securities that effectively transfers a beneficial ownership
interest) as a result of which either (a) (1) the combined beneficial ownership
interest of the Company by Nomura International plc ("Nomura") and its
Affiliates falls below 40% on a fully diluted basis and (2) the combined
beneficial ownership interest of the Company by another Person and its
Affiliates exceeds the combined beneficial ownership interest of Nomura and its
Affiliates or (b) the combined beneficial ownership interest of the Company by
Nomura and its Affiliates falls below 20% on a fully diluted basis or (ii) a
sale, or series of sales, of all or substantially all of the assets of the
Company as a result of which either (A) (I) the combined beneficial ownership
interest by Nomura and its Affiliates of the assets of the business conducted by
the Company falls below 40% of the assets of the business conducted by the
Company immediately prior to such sale or series of sales (measured on the basis
of the net book value, on a consolidated basis, thereof) and (II) the combined
beneficial ownership interest of another Person of former assets of the business
as conducted by the Company immediately prior to such sale or series of sales
exceeds the combined beneficial ownership interest by Nomura and its Affiliates
of the assets of the business conducted by the Company immediately prior to such
sale or series of sales (measured on the basis of the net book value, on a
consolidated basis, thereof) or (B) the combined beneficial ownership interest
by Nomura and its Affiliates of the assets of the business conducted by the
Company falls below 20% of the assets of the business conducted by the Company
immediately prior to such sale or series of sales (measured on the basis of the
net book value, on a consolidated basis, thereof); provided that the provisions
set forth in clause (ii) shall be deemed not to apply in the case of any
transfer, sale, assignment, pledge, hypothecation or other disposition of assets
in connection with, or incident to, any borrowings, securitizations or other
financing transactions or in the case of the recapitalization, reclassification,
liquidation or dissolution of the Company.
Section 1.6 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.7 - Committee
"Committee" shall mean the Compensation Committee of the Board of
Directors.
Section 1.8 - Common Stock and Share
31 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
"Common Stock" or "Share" means common stock of the Company which
may be authorized but unissued, or issued and reacquired.
Section 1.9 - Disability
"Disability" shall have the meaning set forth for the term
"totally and permanently disabled" in the Employment Agreement.
Section 1.10 - Effective Time
"Effective Time" shall mean the date of the effective time of the
merger of Antigua Acquisition Corporation, a Delaware corporation ("Merger
Sub"), with and into the Company pursuant to the Agreement and Plan of Merger,
dated as of June 5, 1996, as amended, among the Company, AT&T Corp., a New York
corporation, Hercules Limited, a Cayman Islands company, and Merger Sub.
Section 1.11 - Employment Agreement
"Employment Agreement" shall mean the Employment Agreement, dated
as of September 30, 1996, between Merger Sub and the Optionee, as amended or
supplemented from time to time.
Section 1.12 - Fair Market Value
"Fair Market Value" shall mean, with respect to a share of Common
Stock, (i) prior to an IPO, the amount established at the immediately preceding
determination, which determination will have been made not less than annually,
by an independent U.S.-based investment banker (or, in the sole discretion of
the Board of Directors, an independent U.S.-based appraisal firm) selected by
the Board of Directors as the fair market value of a Share without giving effect
to any discount attributable to the illiquidity of the Shares or the fact that
any such Shares may constitute a minority interest in the Company or any premium
attributable to any special rights of any holder with respect to its Shares;
provided that prior to the first such determination (which shall occur not later
than January 31, 1997), the Fair Market Value of a share of Common Stock shall
be the Exercise Price provided in Section 2.2(a) hereof and (ii) after an IPO,
the Market Price Per Share of the Shares.
Section 1.13 - Good Reason
"Good Reason" shall have the meaning set forth in the Employment
Agreement.
Section 1.14 - Grant Date
"Grant Date" shall mean the date on which the Options provided
for in this Agreement were granted.
Section 1.15 - Group
"Group" shall mean, with respect to a particular time, any of the
Company and its Subsidiaries as of such time. Any event that results in an
entity ceasing to be a Subsidiary of the Company shall be deemed to
32 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
constitute the cessation of employment with the Group of all employees of such
former Subsidiary, except for such employees of such former Subsidiary who
become employees of the Company or one of its then Subsidiaries within 10 days
of such event.
Section 1.16 - IPO
"IPO" shall mean a sale of Shares to the public that results in
an active trading market in the Shares.
Section 1.17 - Market Price Per Share
"Market Price Per Share" at any date shall be deemed to be the
average of the daily closing prices for the 20 consecutive trading days
commencing on the 30th trading day prior to the date in question. The closing
price for each day shall be (x) if the Common Stock is listed or admitted to
trading on a national securities exchange, the closing price on the New York
Stock Exchange Consolidated Tape (or any successor composite tape reporting
transactions on national securities exchanges) or, if such a composite tape
shall not be in use or shall not report transactions in the Common Stock, the
last reported sales price regular way on the principal national securities
exchange on which the Common Stock is listed or admitted to trading (which shall
be the national securities exchange on which the greatest number of shares of
Common Stock has been traded during such 20 consecutive trading days), or, if
there is no transaction on any such day in any situation, the mean of the bid
and asked prices on such day or (y) if the Common Stock is not listed or
admitted to trading on any such exchange, the closing price, if reported, or, if
the closing price is not reported, the average of the closing bid and asked
prices as reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ) or a similar source selected from time to time by the
Company for the purpose. In the event such closing prices are unavailable, the
Market Price Per Share shall be deemed to be the fair market value as determined
in good faith by the Board of Directors, on the basis of such relevant factors
as it in good faith considers, in the reasonable judgment of the Board of
Directors, appropriate.
Section 1.18 - Normal Retirement
"Normal Retirement" shall mean the voluntary retirement of the
Optionee on a date on or after December 31, 1999.
Section 1.19 - Offering Percentage
"Offering Percentage" shall mean, with respect to any public
offering of Shares, that percentage of all outstanding stock of the Company
(determined as of the time after the relevant public offering) represented by
the Shares sold in such public offering.
Section 1.20 - Options
"Options" shall mean the options to purchase Common Stock granted
under this Agreement, which options have not been designated as "incentive stock
options" within the meaning of Section 422 of the Code.
33 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Section 1.21 - Person
"Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust, unincorporated
organization or other entity.
Section 1.22 - Plan
"Plan" shall mean the AT&T Capital Corporation 1996 Long Term
Incentive Plan.
Section 1.23 - Pronouns
The masculine pronoun shall include the feminine and neuter, and
the singular the plural, where the context so indicates.
Section 1.24 - QPO
"QPO" shall mean a sale of shares of Common Stock to the public
pursuant to a registration statement under the Act that has been declared
effective by the Securities and Exchange Commission (the "Commission") (other
than a registration statement on Form S-4 or Form S-8, or any successor or other
forms promulgated for similar purposes, or a registration statement in
connection with an offering to employees of the Company and its Subsidiaries)
that results in an active trading market in the Common Stock.
Section 1.25 - RIF Termination
"RIF Termination" shall mean (i) termination of an Optionee's
employment by the Group as a result of a reduction in force, facility relocation
or closing, or other Company program for job elimination, in each case that
results in the termination of a significantly large number of employees, or (ii)
termination within 135 days prior to a Change of Control if the Optionee can
demonstrate that such termination (a) was at the request of a third party with
which the Company had entered into negotiations or provided for in an agreement
with regard to such Change of Control or (c) otherwise occurred in connection
with, or in anticipation of, such Change of Control; and provided further that,
in the case of either (i) or (ii) above, such Change of Control actually occurs.
Section 1.26 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.27 - Subsidiary
"Subsidiary" shall mean any corporation other than the Company in
an unbroken chain of corporations beginning with the Company if each of the
corporations, or group of commonly controlled corporations, other than the last
corporation in the unbroken chain then owns stock possessing 50% or more of the
voting stock in one of the other corporations in such chain.
34 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
ARTICLE II
GRANT OF OPTIONS
Section 2.1 - Grant of Options
For good and valuable consideration, on and as of the date hereof
the Company irrevocably grants to the Optionee an Option to purchase any part or
all of an aggregate of the number of shares set forth with respect to each such
Option on the signature page hereof of its Common Stock, par value $.01 per
share, upon the terms and conditions set forth in this Agreement.
Section 2.2 - Exercise Price
(a) The exercise price of the Shares covered by the Options (the
"Exercise Price") shall be $10.00 per Share, without commission or other charge.
(b) Notwithstanding the foregoing, in the case of termination
without Cause (other than a RIF Termination) or resignation for Good Reason
prior to the time the Options become exercisable in full in accordance with
Section 3.2(a), the Exercise Price shall be increased by the amount, if any, of
the excess of the Fair Market Value of the Common Stock as of the date of
exercise of the Option over its Fair Market Value (x) as of the date of such
termination or resignation, if an IPO has previously occurred or (y) prior to an
IPO, at the next period determination of Fair Market Value following such
termination or resignation or as of the day following an IPO, whichever is
earlier.
Section 2.3 - Options Confer No Rights to Continued Employment
Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to terminate the employment
of the Optionee at any time for any reason whatsoever, with or without Cause.
Section 2.4 - Adjustments in Options
Subject to Paragraph 9 of the Plan, in the event that the
outstanding shares of the stock subject to an Option are, from time to time,
changed into or exchanged for a different number or kind of shares of the
Company or other securities of the Company by reason of a merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, combination of
shares, or otherwise, the Committee shall make an appropriate and equitable
adjustment in the number and kind of shares or other consideration as to which
such Option, or portions thereof then unexercised, shall be exercisable and the
exercise price therefor. Any such adjustments made by the Committee shall be
final and binding upon the Optionee, the Company and all other interested
Persons.
35 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Vesting
(a) (i) With respect to the number of Shares covered by the
Options identified as Cycle I on the signature page hereof, Options shall become
vested, thereby becoming eligible for exercise in accordance with Section 3.2,
with respect to 20% of the underlying Shares in Cycle I (or such lesser
percentage of the underlying Shares in Cycle I as then represents Options that
have not yet become vested) on each anniversary of the Grant Date beginning with
the first anniversary of the Grant Date; provided that if on any anniversary of
the Grant Date beginning with the first anniversary thereof the Optionee has met
in each year or portion thereof following the Effective Time the performance
criteria relating hereto which are to be established by good faith agreement
between the Board of Directors of the Company and the Optionee taking into
account the historical performance of the Company reasonably promptly following
the Effective Time (and, if not so established, to be established by arbitration
under the procedures set forth in the Employment Agreement), Options shall
become vested, thereby becoming eligible for exercise in accordance with Section
3.2, with respect to 33-1/3% of the underlying Shares in Cycle I (or such lesser
percentage of the underlying Shares in Cycle I as then represents Options that
have not yet become vested) on such anniversary of the Grant Date.
(ii) With respect to the number of Shares covered by the Options
identified as Cycle II on the signature page hereof, Options shall become
vested, thereby becoming eligible for exercise in accordance with Section 3.2,
with respect to 50% of the underlying Shares in Cycle II on each anniversary of
the Grant Date beginning with the fourth anniversary of the Grant Date; provided
that the Optionee is serving as either Chairman or Chief Executive Officer or
both on the date that Options with respect to such Shares are scheduled to
become vested under this clause (ii).
(iii) Options which have become vested in accordance with this
Section 3.1(a) are hereinafter referred to as "Vested Options".
(b) Notwithstanding the foregoing, upon any cessation of
employment by the Group of the Optionee for any reason or reasons, any Option or
portion of an Option that shall not have become vested in accordance with
provisions of Section 3.1(a) shall be immediately cancelled.
(c) Subject to Paragraph 10 of the Plan, in the event of a Change
of Control, the Options that have not yet become Vested Options at the time of
such Change of Control will not become immediately vested but will continue to
vest as provided in Section 3.1(a).
Section 3.2 - Exercisability
Options are not exercisable by the Optionee into Common Stock in
any circumstances except that Vested Options may be exercised into Common Stock
by the Optionee only following the event of (i) a Change of Control
36 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
or (ii) a QPO, provided that, prior to a Change of Control, the maximum number
of Shares for which Options may be so exercised by the Optionee shall be limited
to a number of Shares equal to the product of (x) 2 times (y) the Offering
Percentage times (z) the total number of Shares underlying all Options granted
to Optionee under the Plan or any other plans of the Corporation or any
Subsidiary; provided further that, in the case of either clause (i) or clause
(ii), no Options may be exercised unless on the date on which the Optionee
proposes to exercise any Options the Company has ratings on both its long term
debt and short term debt by both Moody's Investors Services, Inc. and Standard &
Poor's Ratings Group (or, if either or both of such organizations no longer rate
such securities, such other nationally recognized statistical rating
organization or organizations that have been selected by the Board of Directors
in good faith) in one of its generic rating categories that signifies investment
grade and no such organization has announced, either publicly or to the Company,
that it contemplates downgrading either or both of such ratings to one of its
generic rating categories that signifies less than investment grade, except to
the extent that the Board of Directors, having considered all of the
alternatives available to the Company (other than any capital contributions by,
or sales of equity securities to, any person, including, without limitation, the
then existing stockholders, or any of them), determines that it is not in the
best interests of the Company to continue to maintain any of such investment
grade ratings; provided further that if, on the tenth anniversary of the
Effective Time, any Vested Options held by the Optionee have not then previously
been exercisable for a period of at least 60 days, the restriction on
exercisability set forth in the immediately preceding proviso shall be of no
further effect with respect to such Vested Options.
Section 3.3 - Expiration of Options
The Options may not be exercised into Common Stock to any extent
by the Optionee after, and shall terminate upon, the first to occur of the
following events:
(i) the eleventh anniversary of the Grant Date (or, if any Options are not
then exercisable in accordance with Section 3.2, then, with respect to such
Options only, such later date that is 60 days following the date on which such
Options shall become so exercisable);
(ii) the date of cessation of employment by the Group for any reason other
than Normal Retirement, death or Disability, termination without Cause or
resignation for Good Reason of the Optionee; or
(iii) 60 days after termination by the Group without Cause or resignation
for Good Reason of the Optionee (or if any Options are not then exercisable in
accordance with Section 3.2, then, with respect to such Options only, 60 days
after the first date that both (A) such Options are exercisable and (B) there
are no applicable restrictions on the transferability of the Shares into which
such Options are exercisable pursuant to any agreement between the Optionee and
the Company).
37 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
ARTICLE IV
EXERCISE OF OPTION
Section 4.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only the Optionee, his duly
appointed attorney-in-fact or, to the extent permitted under Section 5.2, a
trust or custodianship to which a transfer has been made in accordance with
Section 5.2 may exercise an Option or any portion thereof. After the death of
the Optionee, any exercisable portion of an Option may, prior to the time when
an Option becomes unexercisable under Section 3.3, be exercised by his personal
representative, by any Person empowered to do so under the Optionee's will or
under the then applicable laws of descent and distribution or, to the extent
permitted under Section 5.2, by a trust or custodianship to whom a transfer has
been made in accordance with Section 5.2.
Section 4.2 - Partial Exercise
Any exercisable portion of an Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that any partial exercise shall be for whole shares of
Common Stock only.
Section 4.3 - Manner of Exercise
An Option, or any exercisable portion thereof, may be exercised solely
by delivering to the Secretary or his office all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Optionee or the other Person then
entitled to exercise the Option or portion thereof, stating that the Option or
portion thereof is thereby exercised, such notice complying with all applicable
rules established by the Committee;
(b) Full payment (in cash, by check or by a combination thereof) for the
shares with respect to which such Option or portion thereof is exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other Person then
entitled to exercise such Option or portion thereof, stating that (i) the shares
of stock are being acquired for the Optionee's or such other Person's own
account, for investment and without any present intention of distributing or
reselling said shares or any of them except as may be permitted under the Act
and then applicable rules and regulations thereunder, (ii) except as provided
below, the Optionee or other Person then entitled to exercise such Option or
portion thereof will not transfer, sell, assign, pledge, hypothecate or
otherwise dispose of any of the shares (each, a "Transfer") at any time prior to
the tenth anniversary of the date of the Effective Time and (iii) the Optionee
or other Person then entitled
38 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
to exercise such Option or portion thereof will indemnify the Company against
and hold it free and harmless from any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the shares by such
Person is contrary to the representation and agreement referred to above;
provided, however, that the Committee may, in its absolute discretion, take
whatever additional actions it deems appropriate to ensure the observance and
performance of such representation and agreement and to effect compliance with
the Act and any other federal or state securities laws or regulations;
(d) Full payment to the Company of all amounts which, under federal, state
or local law, it is required to withhold upon exercise of the Option; and
(e) In the event the Option or portion thereof shall be exercised pursuant
to Section 4.1 by any Person or Persons other than the Optionee, appropriate
proof of the right of such Person or Persons to exercise the Option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stopAtransfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in clause (i) of subsection
(c) above shall, however, not be required if the shares to be issued pursuant to
such exercise have been registered under the Act, and such registration is then
effective in respect of such shares.
The written agreement referred to in clause (ii) of subsection (c)
above will permit only the following Transfers prior to the tenth anniversary of
the Effective Time:
(w) A transfer upon the death of the Optionee or other Person then entitled
to exercise such Option or portion thereof to his or her executors,
administrators, testamentary trustees, legatees or beneficiaries; provided that
it is expressly understood that any such transferee shall be bound by the
provisions of the written agreement referred to in clause (ii) of subsection (c)
above;
(x) A transfer made after the date of exercise of the Option or portion
thereof in compliance with the federal securities laws to a trust or
custodianship the beneficiaries of which may include only the Optionee or other
Person then entitled to exercise such Option or portion thereof, his or her
spouse or the Optionee's or such other Person's lineal descendants; provided, in
each such case, that such transfer is made expressly subject to the Agreement
and that the transferee agrees in writing to be bound by the provisions of the
written agreement referred to in clause (ii) of subsection (c) above;
(y) A sale of shares pursuant to an effective registration statement under
the Act filed by the Company or pursuant to a sale participation
39 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
agreement that has been entered into by the Optionee and Nomura or an Affiliate
or Affiliates of Nomura; and
(z) in connection with a sale in the public market (subject to the
provisions of Rule 144 under the Act where applicable) from and after a QPO;
provided that such sale shall be subject to such blackAout period and/or other
restrictions on such sale as shall be reasonably requested by any underwriters
in offerings of the securities of the Company in order to insure the success of
such offerings; and provided further that the number of shares that may be sold
in each one-year period following the QPO will be limited to the greater of (i)
25% of the total number of shares of Common Stock, on a fully diluted basis,
held by the Optionee or such other Person immediately following the QPO and (ii)
that number of shares of Common Stock underlying the Options or any other stock
options issued by the Company held by the Optionee or such other Person as to
which (A) pursuant to the terms of such options, the Optionee's right to
purchase such stock would expire during such one-year period and (B) such
options are actually exercised by the Optionee or other Person then entitled to
exercise such options or portions thereof. Notwithstanding the foregoing
permitted Transfers, the Optionee or other Person then entitled to exercise such
Option or portion thereof will further represent and agree in the written
agreement referred to in subsection (c) above that he or she will not at any
time transfer, sell, assign, pledge, hypothecate or otherwise dispose of any
shares at any time, directly or indirectly, to any competitor or prospective
competitor of the Company or to any affiliate of a such a person, other than:
(A) in connection with a sale to a third party pursuant to a stock purchase
agreement or sale participation agreement that has been entered into by the
Optionee and Nomura or an Affiliate or Affiliates of Nomura;
(B) in a widely distributed, underwritten public offering upon the exercise
of the rights provided for under a registration rights agreement covering such
shares; or
(C) pursuant to a sale effected (when otherwise permitted as provided
above) through an open market, nondirected broker's transaction in which the
Optionee or other Person then entitled to exercise such Option as seller does
not know the buyer is a competitor or prospective competitor.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of an Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of an Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The obtaining of approval or other clearance from any state or federal
governmental agency which the Committee shall, in its absolute discretion,
determine to be necessary or advisable; and
40 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
(b) The lapse of such reasonable period of time (not to exceed 60 days)
following the exercise of the Option as the Committee may from time to time
establish for reasons of administrative convenience.
Section 4.5 - Rights as Stockholder
The holder of an Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares purchasable
upon the exercise of the Option or any portion thereof unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
MISCELLANEOUS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Optionee, the Company
and all other interested Persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the Options. In its absolute discretion, the Board of
Directors may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan and this Agreement.
Section 5.2 - Options Not Transferable
Except as may be provided in any other agreement between the Optionee
and the Company, neither the Options nor any interest or right therein or part
thereof shall be liable for the debts, contracts or engagements of the Optionee
or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution. Notwithstanding the foregoing, if (i) the Company shall have
received a no action letter from the Commission to the effect that the
Commission will not raise any objection, based on the fact that such transfers
by the Optionee would be permitted, if the Company does not comply with the
registration requirements of Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), with respect to the class of equity
securities that include the Options at such time that the Company has more than
500 holders of equity securities of the class that includes the Options and
otherwise meets the requirement for such registration even were such transfers
by the Optionee were to be
41 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
permitted hereunder at least until such time as the Company otherwise becomes a
reporting company under the Exchange Act with respect to any class of its equity
securities and (ii) the Plan shall have been amended to permit such transfers
and to permit such a transferee to exercise the Options, then Options may be
transferred during the Optionee's lifetime for estate planning purposes to a
trust or custodianship for the exclusive benefit of the Optionee, his spouse or
the Optionee's lineal descendants; provided that (1) such transfers obligate the
trust or custodianship to be subject to the terms and conditions of this
Agreement and (2) such trust or custodianship may transfer any Options so
transferred only to the Optionee's permitted beneficiaries, only after the
Optionee's death and then only in accordance with the trust's or custodianship's
governing instrument. The Company agrees to use its best reasonable efforts (A)
to apply for and have issued by the Commission such no action letter and (B) if
such no action letter is so issued, to amend the Plan to permit such transfers
by the Optionee and to permit such a transferee to exercise such Options.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Options reserve
and keep available, either in its treasury or out of its authorized but unissued
shares of stock, such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
or her status and address by written notice under this Section 5.4. Any notice
shall have been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal
Service; provided that reasonable steps are taken to assure actual receipt by
the person to be notified.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
Section 5.6 - Applicability of Plan and Other Agreements
The Options and the shares of Common Stock issued to the Optionee upon
exercise of the Options shall be subject to all of the terms and provisions of
the Plan and any other agreements between the Optionee and the Company, to the
extent applicable to the Options and such Shares. In
42 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
the event of any conflict between this Agreement and the Plan, the terms of the
Plan shall control. In the event of any conflict between this Agreement or the
Plan and any other agreements between the Optionee and the Company, the terms of
the other agreements between the Optionee and the Company shall control.
Section 5.7 - Amendment
This Agreement may be amended or supplemented by the Company, when
authorized by a resolution of the Committee or of the Board of Directors, to
cure any ambiguity, defect or inconsistency, to comply with Section 2.4 hereof
or to make any change that does not adversely affect the rights of the Optionee.
Any other amendment or supplement of this Agreement may be made only by a
writing executed by the parties hereto which specifically states that it is
amending this Agreement.
Section 5.8 - Governing Law
The laws of the State of Delaware shall govern the interpretation,
validity and performance of the terms of this Agreement regardless of the law
that might be applied under principles of conflicts of laws.
Section 5.9 - Jurisdiction
Any suit, action or proceeding against the Optionee with respect to
this Agreement, or any judgment entered by any court in respect of any thereof,
may be brought in any court of competent jurisdiction in the State of New
Jersey, as the Company may elect in its sole discretion, and the Optionee hereby
submits to the nonAexclusive jurisdiction of such courts for the purpose of any
such suit, action, proceeding or judgment. The Optionee hereby irrevocably
waives any objections which he may now or hereafter have to the laying of the
venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in any court of competent jurisdiction in the State of New
Jersey, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum. No suit, action or proceeding against the Company with
respect to this Agreement may be brought in any court, domestic or foreign, or
before any similar domestic or foreign authority other than in a court of
competent jurisdiction in the State of New Jersey, and the Optionee hereby
irrevocably waives any right which he may otherwise have had to bring such
43 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
an action in any other court, domestic or foreign, or before any similar
domestic or foreign authority. The Company hereby submits to the jurisdiction of
such courts for the purpose of any such suit, action or proceeding.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
AT&T CAPITAL CORPORATION
By: _________________________
Name:
Title:
___________________________ Aggregate number of shares
Optionee of Common Stock for which
the Option hereunder is
___________________________ granted: 598,900
___________________________ Cycle I: 498,900
Address Cycle II: 100,000
Optionee's Taxpayer
Identification Number:
___________________________
44 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
EXHIBIT B
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (hereinafter called this "Agreement"), dated
as of September 30, 1996, among Nomura International plc, a public limited
company incorporated under the laws of England and Wales ("NIplc"), Antigua
Acquisition Corporation, a Delaware corporation ("Merger Sub"), and Thomas C.
Wajnert (the "Seller").
RECITALS
WHEREAS, Merger Sub has entered into an Agreement and Plan of Merger,
dated as of June 5, 1996, as amended (the "Merger Agreement"), among AT&T
Capital Corporation, a Delaware corporation (the "Company"), AT&T Corp., a New
York corporation, Hercules Limited, a Cayman Islands company ("Holdings") and
Merger Sub, which is a wholly-owned subsidiary of Holdings, providing for the
merger (the "Merger") of Merger Sub with and into the Company, after which the
Company will continue its corporate existence as the surviving corporation (the
"Surviving Corporation");
WHEREAS, in connection with the Merger, Merger Sub and the Seller are
contemporaneously herewith entering into a Subscription Agreement of even date
herewith (the "Subscription Agreement"), pursuant to which the Seller, as one of
a limited number of management investors, will purchase immediately prior to the
Merger, shares of Common Stock, par value $.01 per share, of Merger Sub (the
"Merger Sub Common Stock"), each of which will be converted at the effective
time of the Merger (the "Effective Time") pursuant to the Merger Agreement into
one share of Common Stock, par value $.01 per share, of the Surviving
Corporation ("Surviving Corporation Common Stock");
WHEREAS, in connection with the Seller's prospective ownership of
shares of Surviving Corporation Common Stock, NIplc, Merger Sub and the Seller
propose to agree to certain provisions with respect to the future purchase and
sale, upon certain terms and subject to certain conditions, of such shares; and
WHEREAS, this Agreement is one of several agreements (such agreements
other than this Agreement being herein referred to collectively as "Other
Sellers' Agreements") which have been, or which in the future will be, entered
into between the Surviving Corporation and other individuals who are or will be
certain officers or key employees of the Surviving Corporation or one of its
Subsidiaries (collectively, the "Other Sellers").
NOW, THEREFORE, to implement the foregoing and in consideration of the
premises and of the mutual agreements contained herein, the parties hereto agree
as follows:
1. Certain Definitions.
45 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary.
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. Solely for purposes of this Agreement, GRS Holding Company Limited and
Babcock & Brown, Inc. and their respective Affiliates shall be deemed to be
Affiliates of NIplc.
"Board of Directors" shall mean the Board of Directors of the
Surviving Corporation.
"Cause" shall have the meaning set forth in the Employment Agreement.
"Change of Control" shall mean (i) any transaction (including, without
limitation, a merger, consolidation or reorganization, or a sale of derivative
securities that effectively transfers a beneficial ownership interest) as a
result of which either (a) (1) the combined beneficial ownership interest of the
Surviving Corporation by NIplc and its Affiliates falls below 40% on a fully
diluted basis and (2) the combined beneficial ownership interest of the
Surviving Corporation by another Person and its Affiliates exceeds the combined
beneficial ownership interest of NIplc and its Affiliates or (b) the combined
beneficial ownership interest of the Surviving Corporation by NIplc and its
Affiliates falls below 20% on a fully diluted basis or (ii) a sale, or series of
sales, of all or substantially all of the assets of the Surviving Corporation as
a result of which either (A) (I) the combined beneficial ownership interest by
NIplc and its Affiliates of the assets of the business conducted by the
Surviving Corporation falls below 40% of the assets of the business conducted by
the Surviving Corporation immediately prior to such sale or series of sales
(measured on the basis of the net book value, on a consolidated basis, thereof)
and (II) the combined beneficial ownership interest of another Person of former
assets of the business as conducted by the Surviving Corporation immediately
prior to such sale or series of sales exceeds the combined beneficial ownership
interest by NIplc and its Affiliates of the assets of the business conducted by
the Surviving Corporation immediately prior to such sale or series of related
sales (measured on the basis of the net book value, on a consolidated basis,
thereof) or (B) the combined beneficial ownership interest by NIplc and its
Affiliates of the assets of the business conducted by the Surviving Corporation
falls below 20% of the assets of the business conducted by the Surviving
Corporation immediately prior to such sale or series of sales (measured on the
basis of the net book value, on a consolidated basis, thereof); provided that
the provisions set forth in clause (ii) shall be deemed not to apply in the case
of any transfer, sale, assignment, pledge, hypothecation or other disposition of
assets in connection with, or incident to, any borrowings, securitizations or
other financing transactions or in the case of the recapitalization,
reclassification, liquidation or dissolution of the Surviving Corporation.
"Compensation Committee" shall mean the Compensation Committee of the
Board of Directors.
46 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
"Disability" shall have the meaning set forth for the term "totally
and permanently disabled" in the Employment Agreement.
"Employment Agreement" shall mean the Employment Agreement, dated as
of September 30, 1996, between Merger Sub and the Seller, as amended or
supplemented from time to time.
"Fair Market Value" shall mean, with respect to a share of Surviving
Corporation Common Stock, the amount established at the immediately preceding
determination, which determination will have been made no less than annually, by
an independent U.S.-based investment banker (or, in the sole discretion of the
Board of Directors, an independent U.S.-based appraisal firm) selected by the
Board of Directors as the fair market value of a share of Surviving Corporation
Common Stock without giving effect to any discount attributable to the
illiquidity of such shares or the fact that any such shares may constitute a
minority interest in the Surviving Corporation or any premium attributable to
any special rights of any holder with respect to shares of Surviving Corporation
Common Stock; provided that prior to the first such determination (which shall
occur not later than January 31, 1997), the Fair Market Value of a share of
Surviving Corporation Common Stock shall be the purchase price per share paid by
the Seller for his Investment Shares.
"Good Reason" shall have the meaning set forth in the Employment
Agreement.
"Group" shall mean, with respect to a particular time, any of the
Surviving Corporation and its Subsidiaries as of such time. Any event that
results in an entity ceasing to be a Subsidiary of the Surviving Corporation
shall be deemed to constitute the cessation of employment with the Group of all
employees of such former Subsidiary, except for such employees of such former
Subsidiary who become employees of the Surviving Corporation or one of its then
Subsidiaries within 10 days of such event.
"Investment Price" shall mean the price per share paid by the Seller
for each of the Investment Shares pursuant to the Subscription Agreement.
"Investment Shares" shall have the meaning set forth in the
Subscription Agreement.
"Normal Retirement" shall mean the voluntary retirement of the Seller
on a date on or after December 31, 1999.
"Per Share Interest Amount" shall mean, with respect to a relevant
number of Rollover Shares being purchased pursuant to the provisions of this
Agreement, an amount per share equal to the cumulative amount of interest at the
Compensatory Interest Rate on the Investment Price of such Rollover Shares from
the Effective Time through, but not including, the date of the Repurchase (as
hereinafter defined), compounded annually. The "Compensatory Interest Rate"
equals the product of (i) the rate of interest set forth in the Promissory Note
multiplied by (ii) a fraction the numerator of which is the principal amount of
the Promissory Note on the date of Repurchase and the denominator of which is
the product
47 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
of the total number of Rollover Shares multiplied by the Investment Price of
such Rollover Shares.
"Promissory Note" shall mean the Purchaser's promissory note issued
pursuant to the AT&T Capital Corporation 1993 Leveraged Stock Purchase Plan or
the AT&T Capital Corporation 1993 Long Term Incentive Plan, as the case may be,
as such note has been amended in accordance with the terms of the Subscription
Agreement.
"QPO" shall mean a sale of shares of Surviving Corporation Common
Stock to the public pursuant to a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), that has been declared effective
by the Securities and Exchange Commission (other than a registration statement
on Form S-4 or Form S-8, or any successor or other forms promulgated for similar
purposes, or a registration statement in connection with an offering to
employees of the Surviving Corporation and its Subsidiaries) that results in an
active trading market in the Surviving Corporation Common Stock.
"RIF Termination" shall mean (i) termination of the Seller's
employment by the Group as a result of a reduction in force, facility relocation
or closing, or other Surviving Corporation program for job elimination, in each
case that results in the termination of a significantly large number of
employees, or (ii) termination within 135 days prior to a Change of Control if
the Seller can demonstrate that such termination (a) was at the request of a
third party with which the Surviving Corporation had entered into negotiations
or was provided for in an agreement with regard to such Change of Control or (b)
otherwise occurred in connection with, or in anticipation of, such Change of
Control; provided further that, in the case of either clause (a) or (b), such
Change of Control actually occurs.
"Rollover Shares" shall mean those Investment Shares resulting from
the conversion at the Effective Time in the Merger pursuant to the Merger
Agreement of the Purchaser's Pre-Merger Shares (as defined in the Subscription
Agreement).
"Seller's Estate" and "Seller's Trust" shall have the respective
meanings set forth in the Subscription Agreement for the terms "Purchaser's
Estate" and "Purchaser's Trust," respectively.
"Subsidiary" shall mean any corporation other than the Surviving
Corporation in an unbroken chain of corporations beginning with the Surviving
Corporation if each of the corporations other than the last corporation in the
unbroken chain owns 50% or more of the voting stock in one of the other
corporations in such chain.
2. Seller's Option to Sell Stock to NIplc Upon
Certain Events.
(a) Except as otherwise provided herein, if, prior to the occurrence
of a QPO:
48 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
(i) The Seller is terminated by the Group without Cause (other than a
RIF Termination) or resigns for Good Reason, then the Seller, the Seller's
Estate or the Seller's Trust, as the case may be, shall have the right, for 15
days following the date of such termination or resignation, to give notice to
the Surviving Corporation of his or its election to sell to the Purchasing
Entity (as defined in Section 2(b) hereof), and the Purchasing Entity shall be
required to purchase, on one occasion, except as otherwise provided herein,
within 60 days of the receipt of such notice, all or any portion (as determined
by the Seller, the Seller's Estate or the Seller's Trust, as the case may be,
and set forth in such notice) of the Investment Shares then held by the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, at the Repurchase
Price determined in accordance with Sections 4(a) and 5 hereof;
(ii) The Seller is terminated by the Group for Cause or resigns
without Good Reason, then the Seller, the Seller's Estate or the Seller's Trust,
as the case may be, shall have the right, for 15 days following the date of such
termination or resignation, to give notice to the Surviving Corporation of his
or its election to sell to the Purchasing Entity, and the Purchasing Entity
shall be required to purchase, on one occasion, except as otherwise provided
herein, within 60 days of the receipt of such notice, all or any portion (as
determined by the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, and set forth in such notice) of the Investment Shares then held by the
Seller, the Seller's Estate or the Seller's Trust, as the case may be, at the
Repurchase Price determined in accordance with Sections 4(b) and 5 hereof;
(iii) The Seller is terminated by the Group in a RIF Termination, then
the Seller, the Seller's Estate or the Seller's Trust, as the case may be, shall
have the right, for 15 days following the date of such termination, to give
notice to the Surviving Corporation of his or its election to sell to the
Purchasing Entity, and the Purchasing Entity shall be required to purchase, on
one occasion, except as otherwise provided herein, within 60 days of the receipt
of such notice, all or any portion (as determined by the Seller, the Seller's
Estate or the Seller's Trust, as the case may be, and set forth in such notice)
of the Investment Shares then held by the Seller, the Seller's Estate or the
Seller's Trust, as the case may be, at the Repurchase Price determined in
accordance with Sections 4(c) and 5 hereof;
(iv) The Seller ceases employment with the Group due to death or
Disability, then the Seller, the Seller's Estate or the Seller's Trust, as the
case may be, shall have the right, for 60 days following the date of such
cessation of employment, to give notice to the Surviving Corporation of his or
its election to sell to the Purchasing Entity, and the Purchasing Entity shall
be required to purchase, on one occasion, except as otherwise provided herein,
within 60 days of the receipt of such notice, all or any portion (as determined
by the Seller, the Seller's Estate or the Seller's Trust, as the case may be,
and set forth in such notice) of the Investment Shares then held by the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, at the Repurchase
Price determined in accordance with Sections 4(d) and 5 hereof; and
49 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
(v) The Seller ceases employment with the Group upon Normal
Retirement, then the Seller, the Seller's Estate or the Seller's Trust, as the
case may be, shall have the right, following the date of such cessation of
employment, to give notice to the Surviving Corporation of his or its election
to sell to the Purchasing Entity, and the Purchasing Entity shall be required to
purchase, on one occasion in each one-year period following such cessation of
employment, subject to the limits set forth below, all or any portion (as
determined by the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, and set forth in such notice) of the Investment Shares then held by the
Seller, the Seller's Estate or the Seller's Trust, as the case may be, at the
Repurchase Price determined in accordance with Sections 4(e) and 5 hereof.
Notwithstanding anything to the contrary contained herein, the number of shares
that the Purchasing Entity shall be required to purchase from the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, in the event of
Normal Retirement shall be limited to the indicated percentage of the aggregate
of the Investment Shares held by the Seller, the Seller's Estate and the
Seller's Trust on the date of such cessation of employment (less in each case
after the first anniversary of such date the percentage of the shares so held on
such date that were previously purchased by a Purchasing Entity) in each of the
periods indicated in the following table:
Period Percentage
- ------------------------------------------ ----------
From the date of cessation of employment
through the first anniversary of such date 100%
From the day after the first anniversary of
the cessation of employment through the second
anniversary of such date 80%
From the day after the second anniversary of
the cessation of employment through the third
anniversary of such date 60%
From the day after the third anniversary of
the cessation of employment through the fourth
anniversary of such date 40%
From the day after the fourth anniversary of
the cessation of employment through the fifth
anniversary of such date 20%
Following the fifth anniversary of the cessation
of employment 0%
(b) If the Seller, the Seller's Estate and/or the Seller's Trust, as
the case may be, desire to sell any Investment Shares pursuant hereto, it or
they shall send notice (the "Redemption Notice") to the Surviving Corporation of
its or their intention to sell Investment Shares in exchange for the payment
(the "Repurchase Price") referred to in Section 2(a)(i) through (iv), as
applicable (which Redemption Notice shall be delivered by the Surviving
Corporation promptly to NIplc). Except as
50 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
otherwise provided herein, the closing of the purchase and sale of Investment
Shares pursuant to this Section 2 shall take place at the principal office of
the Surviving Corporation on or before the 60th day following delivery of the
Redemption Notice. On or prior to such closing, NIplc shall notify the Seller,
the Seller's Estate and/or the Seller's Trust, as the case may be, of the date
and time of such closing and whether, in the absolute discretion of NIplc, NIplc
or another person selected by NIplc pursuant to Section 15 hereof shall be the
purchaser of such Investment Shares (the "Purchasing Entity"). The applicable
Repurchase Price shall be paid by delivery to the Seller, the Seller's Estate or
the Seller's Trust, as the case may be, of a certified or bank cashier's check
or checks, or by wire transfer of funds, in the appropriate amount payable to
the order of the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, against delivery of certificates or other instruments representing the
Investment Shares so purchased, duly endorsed in blank or accompanied by stock
powers executed in blank with the signature of the Seller or his duly authorized
representative, or the appropriately authorized representative of the Seller's
Estate or the Seller's Trust, as the case may be, guaranteed by a member of the
Medallion Signature Guarantee Program, and with all necessary stock transfer
stamps affixed.
(c) This Agreement does not confer upon, and nothing contained herein
shall be interpreted as providing, the Seller any rights to require NIplc or any
of its Affiliates to purchase, in any circumstances, any stock options or any
shares of stock acquired or acquirable upon the exercise of any stock options.
3. NIplc's Option to Purchase Stock Upon Certain
Events.
(a) Except as otherwise provided herein, if, prior to the later of (i)
the occurrence of a QPO and (ii) the tenth anniversary of the Effective Time:
(i) The Seller is terminated by the Group without Cause (other than a
RIF Termination) or resigns for Good Reason, then the Purchasing Entity shall
have the right, for 15 days following the date of such termination or
resignation, to give notice to the Seller, the Seller's Estate or the Seller's
Trust, as the case may be, of its election to purchase from the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, and the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, shall be required to
sell, on one occasion, except as otherwise provided herein, within 60 days of
the receipt of such notice, all or any portion (as determined by the Purchasing
Entity and set forth in such notice) of the Investment Shares then held by the
Seller, the Seller's Estate or the Seller's Trust, as the case may be, at the
Repurchase Price determined in accordance with Sections 4(a) and 5 hereof;
(ii) The Seller is terminated by the Group for Cause or resigns
without Good Reason, then the Purchasing Entity shall have the right, for 15
days following the date of such termination or resignation, to give notice to
the Seller, the Seller's Estate or the Seller's Trust, as the case may be, of
its election to purchase from the Seller, the Seller's Estate or the Seller's
Trust, as the case may be, and the Seller, the
51 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Seller's Estate or the Seller's Trust, as the case may be, shall be required to
sell, on one occasion, except as otherwise provided herein, within 60 days of
the receipt of such notice, all or any portion (as determined by the Purchasing
Entity and set forth in such notice) of the Investment Shares then held by the
Seller, the Seller's Estate or the Seller's Trust, as the case may be, at the
Repurchase Price determined in accordance with Sections 4(b) and 5 hereof;
(iii) The Seller is terminated by the Group in a RIF Termination, then
the Purchasing Entity shall have the right, for 15 days following the date of
such termination, to give notice to the Seller, the Seller's Estate or the
Seller's Trust, as the case may be, of its election to purchase from the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, and the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, shall be required
to sell, on one occasion, except as otherwise provided herein, within 60 days of
the receipt of such notice, all or any portion (as determined by the Purchasing
Entity and set forth in such notice) of the Investment Shares then held by the
Seller, the Seller's Estate or the Seller's Trust, as the case may be, at the
Repurchase Price determined in accordance with Sections 4(c) and 5 hereof; and
(iv) The Seller ceases employment with the Group due to death or
Disability, then the Purchasing Entity shall have the right, for 60 days
following the date of such cessation of employment, to give notice to the
Seller, the Seller's Estate or the Seller's Trust, as the case may be, of its
election to purchase from the Seller, the Seller's Estate or the Seller's Trust,
as the case may be, and the Seller, the Seller's Estate or the Seller's Trust,
as the case may be, shall be required to sell, on one occasion, except as
otherwise provided herein, within 60 days of the receipt of such notice, all or
any portion (as determined by the Purchasing Entity and set forth in such
notice) of the Investment Shares then held by the Seller, the Seller's Estate or
the Seller's Trust, as the case may be, at the Repurchase Price determined in
accordance with Sections 4(d) and 5 hereof.
(b) The Purchasing Entity shall send the Redemption Notice to the
Seller, the Seller's Estate and/or the Seller's Trust, as the case may be,
setting forth the intention to purchase Investment Shares in exchange for the
Repurchase Price referred to in Section 2(a)(i) through (iv), as applicable.
Except as otherwise provided herein, the closing of the purchase and sale of
Investment Shares pursuant to this Section 3 shall take place at the principal
office of the Surviving Corporation on or before the 60th day following delivery
of the Redemption Notice. On or prior to such closing, the Purchasing Entity
shall notify the Seller, the Seller's Estate and/or the Seller's Trust, as the
case may be, of the date and time of such closing and whether, in the absolute
discretion of NIplc, NIplc or another person selected pursuant to Section 15
hereof shall be the Purchasing Entity. The applicable Repurchase Price shall be
paid by delivery to the Seller, the Seller's Estate or the Seller's Trust, as
the case may be, of a certified or bank cashier's check or checks, or by wire
transfer of funds, in the appropriate amount payable to the order of the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, against delivery
of certificates or other instruments representing the Investment Shares so
purchased, duly endorsed in blank or accompanied by
52 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
stock powers executed in blank with the signature of the Seller or his duly
authorized representative, or the appropriately authorized representative of the
Seller's Estate or the Seller's Trust, as the case may be, guaranteed by a
member of the Medallion Signature Guarantee Program, and with all necessary
stock transfer stamps affixed.
4. Determination of Repurchase Price.
(a) If the Seller is terminated by the Group without Cause (other than
a RIF Termination) or resigns for Good Reason, the Repurchase Price applicable
to repurchases (each a "Repurchase") pursuant to either Section 2 or Section 3
shall be (i) if such termination or resignation occurs after the fifth
anniversary of the Effective Time, the Fair Market Value as of the date of such
termination or resignation or (ii) if such termination or resignation occurs on
or before the fifth anniversary of the Effective Time, the higher of (x) the
Investment Price plus, with respect to Rollover Shares only, the Per Share
Interest Amount or (y) the price per share set forth in the table below under
the heading "Alternate Price" for the periods indicated:
Alternate
Period Price
- -------------------------------- -----------------------------------
From the Effective Time through
the first anniversary thereof [No alternative price]
From the day after the first Investment Price plus 20% of
anniversary of the Effective the excess, if any, of Fair
Time through the second Market Value over Investment
anniversary thereof Price
From the day after the second Investment Price plus 40% of
anniversary of the Effective the excess, if any, of Fair
Time through the third anniversary Market Value over Investment
thereof Price
From the day after the third Investment Price plus 60% of
anniversary of the Effective Time the excess, if any, of Fair
through the fourth anniversary Market Value over Investment
thereof Price
From the day after the fourth Investment Price plus 80% of
anniversary of the Effective Time the excess, if any, of Fair
through the fifth anniversary thereof Market Value over Investment
Price
Notwithstanding the foregoing, if (i) the Seller is terminated by the Group
without Cause (other than a RIF Termination) or resigns for Good Reason on or
before the fifth anniversary of the Effective Time and (ii) as of the date of
such termination or resignation the Seller has met in each year or portion
thereof following the Effective Time the performance criteria relating hereto
which are to be established by good faith agreement between
53 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
the Board of Directors of the Surviving Corporation and the Seller taking into
account the historical performance of the Company reasonably promptly following
the Effective Time (and, if not so established, to be established by arbitration
under the procedures set forth in the Employment Agreement), the Repurchase
Price applicable to Repurchases pursuant to either Section 2 or Section 3 shall
be the higher of (x) the Investment Price plus, with respect to Rollover Shares
only, the Per Share Interest Amount or (y) the price per share set forth in the
table below under the heading "Alternate Price" for the periods indicated:
Alternate
Period Price
- ---------------------------------- -------------------------------
From the Effective Time through
the first anniversary thereof [No alternative price]
From the day after the first Investment Price plus 33-1/3%
anniversary of the Effective Time of the excess, if any, of Fair
through the second anniversary Market Value over Investment
thereof Price
From the day after the second Investment Price plus 66-2/3%
anniversary of the Effective Time of the excess, if any, of the
through the third anniversary thereof Fair Market Value over
Investment Price
From the day after the third
anniversary of the Effective Time
through the fifth anniversary thereof Fair Market Value
(b) If the Seller is terminated by the Group for Cause or resigns
without Good Reason, the Repurchase Price applicable to Repurchases pursuant to
either Section 2 or Section 3 shall be equal to the Investment Price plus, with
respect to Rollover Shares only, the Per Share Interest Amount.
(c) If the Seller is terminated by the Group in a RIF Termination, the
Repurchase Price applicable to Repurchases pursuant to either Section 2 or
Section 3 shall be equal to the higher of (x) the Fair Market Value as of the
date of such termination or (y) the Investment Price plus, with respect to
Rollover Shares only, the Per Share Interest Amount.
(d) If the Seller ceases employment with the Group due to death or
Disability, the Repurchase Price applicable to Repurchases pursuant to either
Section 2 or Section 3 shall be equal to the Fair Market Value as of the date of
cessation of employment; provided, however, that if such cessation of employment
occurs on or before December 31, 1997, such Repurchase Price shall not be less
than the Investment Price plus, with respect to Rollover Shares only, the Per
Share Interest Amount.
(e) If the Seller ceases employment upon Normal Retirement, the
Repurchase Price applicable to Repurchases pursuant to Section 2 shall be equal
to the Investment Price plus, with respect to Rollover Shares only, the Per
Share Interest Amount.
54 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
5. Repurchase Price Adjustments.
In determining the Repurchase Price, appropriate adjustments shall be
made for any future issuances to holders of Surviving Corporation Common Stock
of rights to acquire any securities convertible into Surviving Corporation
Common Stock and any stock dividends, splits, combinations, recapitalizations or
any other adjustment in the number of shares of outstanding shares of Surviving
Corporation Common Stock.
6. Rights to Negotiate Repurchase Price.
Nothing in this Agreement shall be deemed to restrict or prohibit
NIplc, the Surviving Corporation or any of their Affiliates from purchasing
shares of Surviving Corporation Common Stock or options to purchase shares of
Surviving Corporation Common Stock from the Seller, at any time, upon such terms
and conditions, and for such price, as may be mutually agreed upon between the
parties, (i) whether or not at the time of such purchase circumstances exist
which specifically grant NIplc the right to purchase, or the Seller the right to
sell, such shares and (ii) notwithstanding the fact that this Agreement does not
provide NIplc, the Surviving Corporation or the Seller with any rights with
respect to the repurchase by any person of stock options.
7. NIplc's Representations and Warranties.
NIplc represents and warrants to the Seller that (i) this Agreement
has been duly authorized, executed and delivered by NIplc and (ii) the
Purchasing Entity will be acquiring any Investment Shares pursuant to this
Agreement for investment for the account of itself and its Affiliates and not
with a view to, or for resale in connection with, the distribution or other
disposition thereof, without prejudice, however, to the Purchasing Entity's
right to sell or otherwise dispose of all or any part of said shares in
compliance with the Securities Act and all applicable state or foreign
securities laws..
8. Merger Sub's Representations, Warranties and Agreements.
(a) Merger Sub represents and warrants to NIplc and the Seller that
this Agreement has been duly authorized, executed and delivered by Merger Sub.
(b) For so long as the provisions of Sections 2, 3 and 4 of this
Agreement remain in effect, Merger Sub agrees that the Surviving Corporation
shall (i) notify NIplc in the manner provided in Section 17 hereof of any
election by the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, pursuant to Section 2(a) hereof to sell to the Purchasing Entity all or
any portion of the Investment Shares held by the Seller, the Seller's Estate or
the Seller's Trust, as the case may be, by delivering promptly to NIplc a copy
of the Redemption Notice sent to the Surviving Corporation by the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, pursuant to Section
2(b) hereof and (ii) notify NIplc in the manner provided by Section 17 hereof
promptly (but in no event more than 5 days thereafter) in writing of any event
involving the Seller that would give rise to a right of the Purchasing Entity
pursuant to
55 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Section 3(a) hereof to purchase from the Seller, the Seller's Estate or the
Seller's Trust, as the case may be, all or any portion of the Investment Shares
held by the Seller, the Seller's Estate or the Seller's Trust, as the case may
be, provided; however, that any failure by the Surviving Corporation to so
notify NIplc shall not relieve the Purchasing Entity of its obligations
hereunder.
9. Expiration of Certain Provisions.
The provisions contained in Sections 2, 3 and 4 of this Agreement and
the portion of any other provision of this Agreement which incorporates the
provisions of Sections 2, 3 and 4, shall terminate and be of no further force or
effect with respect to any Investment Shares sold by the Seller (i) pursuant to
an effective registration statement filed by the Surviving Corporation pursuant
to the Registration Rights Agreement (as defined in the Subscription Agreement),
the Subscription Agreement or otherwise or (ii) pursuant to the terms of the
Sale Participation Agreement of even date herewith, among the Seller and NIplc.
10. Recapitalizations, Etc.
The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Investment Shares, to any and all shares of
capital stock of the Surviving Corporation or any capital stock, partnership
units or any other security evidencing ownership interests in any successor or
assign of the Surviving Corporation (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for, or
substitution of the Investment Shares, by reason of any stock dividend, split,
reverse split, combination, recapitalization, liquidation, reclassification,
merger, consolidation or otherwise.
11. Seller's Employment by the Group.
Nothing contained in this Agreement (i) obligates the Surviving
Corporation or any Subsidiary to employ the Seller in any capacity whatsoever or
(ii) prohibits or restricts the Surviving Corporation (or any such Subsidiary)
from terminating the employment, if any, of the Seller at any time or for any
reason whatsoever, with or without cause, and the Seller hereby acknowledges and
agrees that, except to the extent that certain information, if any, with respect
to his employment has been delivered to the Seller in writing, neither Merger
Sub nor any other person has made any representations or promises whatsoever to
the Seller concerning the Seller's employment or continued employment by the
Group.
12. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 4(a) of the Subscription Agreement, such transferee shall be
deemed the Seller hereunder; provided, however, that no transferee (including
without limitation, transferees referred to in Section 4(a) of the Subscription
Agreement) shall derive any rights under this Agreement
56 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
unless and until such transferee has delivered to NIplc a valid undertaking and
becomes bound by the terms of this Agreement.
13. Amendment.
This Agreement may be amended only by a written instrument signed by
the parties hereto.
14. Applicable Law.
The laws of the State of Delaware shall govern the interpretation,
validity and performance of the terms of this Agreement, regardless of the law
that might be applied under principles of conflicts of law. Any suit, action or
proceeding against the Seller, with respect to this Agreement, or any judgment
entered by any court in respect of any thereof, may be brought in any court of
competent jurisdiction in the State of New Jersey, as NIplc may elect in its
sole discretion, and the Seller hereby submits to the non-exclusive jurisdiction
of such courts for the purpose of any such suit, action, proceeding or judgment.
By the execution and delivery of this Agreement, the Seller appoints the
Secretary of the Surviving Corporation, at the executive offices of the
Surviving Corporation in Morristown, New Jersey (or such other place within the
State of New Jersey as may be designated for such purpose), as his agent upon
which process may be served in any such suit, action or proceeding. Service of
process upon such agent, together with notice of such service given to the
Seller in the manner provided in Section 17 hereof, shall be deemed in every
respect effective service of process upon him in any suit, action or proceeding.
Nothing herein shall in any way be deemed to limit the ability of NIplc to serve
any such writs, process or summonses in any other manner permitted by applicable
law or to obtain jurisdiction over the Seller, in such other jurisdictions and
in such manner, as may be permitted by applicable law. The Seller hereby
irrevocably waives any objections which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or relating
to this Agreement brought in any court of competent jurisdiction in the State of
New Jersey, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum. No suit, action or proceeding against NIplc with respect to
this Agreement may be brought in any court, domestic or foreign, or before any
similar domestic or foreign authority other than in a court of competent
jurisdiction in the State of New Jersey, and the Seller hereby irrevocably
waives any right which he may otherwise have had to bring such an action in any
other court, domestic or foreign, or before any similar domestic or foreign
authority. NIplc hereby submits to the jurisdiction of such courts for the
purpose of any such suit, action or proceeding, and by the execution and
delivery of this Agreement, NIplc appoints the Secretary of the Surviving
Corporation, at the executive offices of the Surviving Corporation in
Morristown, New Jersey (or such other place within the State of New Jersey as
may be designated for such purpose), as its agent upon which process may be
served in any such suit, action or proceeding. Service of process upon such
agent, together with notice of such service given to NIplc in the manner
provided in Section 17 hereof, shall be deemed in every respect effective
service of process upon NIplc in any suit, action or proceeding. NIplc hereby
irrevocably waives any objections which
57 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
it may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any court of
competent jurisdiction in the State of New Jersey, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum.
15. Assignability of Certain Rights by NIplc.
NIplc shall have the right to assign any or all of its rights or
obligations to purchase Investment Shares pursuant to Sections 2 or 3 hereof,
but any such assignment shall not, without the written consent of the Seller or
the Seller's Estate or Seller's Trust, as the case may be, relieve NIplc of its
obligations hereunder.
16. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to United
States dollars and (ii) the word "or" is not exclusive. If any provision of this
Agreement shall be declared illegal, void or unenforceable by any court of
competent jurisdiction, the other provisions shall not be affected, but shall
remain in full force and effect.
17. Notices.
All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or certified
mail, return receipt requested, postage prepaid, to the party to whom it is
directed:
(i) If to NIplc, to it at the following address:
Nomura International plc
Nomura House
1 St. Martin's-le-Grand
London EC1A 4NP
Attention: Mr. Guy Hands
(ii) If to Merger Sub or the Surviving Corporation, to it at the
following address:
Antigua Acquisition Corporation
c/o AT&T Capital Corporation
or
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: Vice President - Human Resources
58 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
with a copy to:
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: General Counsel
(iii) If to the Seller, to him at the address set forth below under
his signature; or at such other address as either party shall have specified by
notice in writing to the other; provided that reasonable steps are taken to
assure actual receipt by the person to be notified.
Any notice which is required to be given to the Seller shall, if the Seller
is then deceased, be given to the Seller's personal representative if such
representative has previously informed NIplc and the Surviving Corporation of
his or her status and address by written notice under this Section 17.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NOMURA INTERNATIONAL plc
By: ___________________________
Name:
Title:
ANTIGUA ACQUISITION CORPORATION
By: ___________________________
Name:
Title:
________________________________
Seller
________________________________
________________________________
Address of Seller
59 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
EXHIBIT C
SALE PARTICIPATION AGREEMENT
SALE PARTICIPATION AGREEMENT (hereinafter called this "Agreement"),
dated as of September 30, 1996, between Nomura International plc, a public
limited company incorporated under the laws of England and Wales ("NIplc"), and
Thomas C. Wajnert (the "Purchaser").
RECITALS
WHEREAS, Antigua Acquisition Corporation, a Delaware corporation
("Merger Sub"), has entered into an Agreement and Plan of Merger, dated as of
June 5, 1996, as amended (the "Merger Agreement"), among AT&T Capital
Corporation, a Delaware corporation (the "Company"), AT&T Corp., a New York
corporation, Hercules Limited, a Cayman Islands company ("Holdings"), and Merger
Sub, which is a wholly-owned subsidiary of Holdings, providing for the merger
(the "Merger") of Merger Sub with and into the Company, after which the Company
will continue its corporate existence as the surviving corporation (the
"Surviving Corporation");
WHEREAS, in connection with the Merger, Merger Sub and the Purchaser
are contemporaneously entering into a Subscription Agreement of even date
herewith (the "Subscription Agreement"), pursuant to which the Purchaser, as one
of a limited number of management investors, will purchase immediately prior to
the Merger, shares of Common Stock, par value $.01 per share, of Merger Sub (the
"Merger Sub Common Stock"), each of which will be converted at the effective
time of the Merger (the "Effective Time") pursuant to the Merger Agreement into
one share of Common Stock, par value $.01 per share, of the Surviving
Corporation ("Surviving Corporation Common Stock");
WHEREAS, following the Merger, NIplc will also beneficially own shares
of Surviving Corporation Common Stock; and
WHEREAS, incident to the Purchaser's ownership of shares of Surviving
Corporation Common Stock, NIplc and the Purchaser propose to agree to certain
provisions with respect to the future sale, upon certain terms and subject to
certain conditions, of such shares.
NOW, THEREFORE, to implement the foregoing and in consideration of the
premises and of the mutual agreements contained herein, the parties hereto agree
as follows:
(iv) Take-Along Rights.
(a) In the event that at any time (i) NIplc or any of its affiliates
(including, without limitation, GRS Holding Company Limited ("GRSH") and
Hercules Limited, which also beneficially own, directly or indirectly, the
shares of Merger Sub Common Stock beneficially owned by NIplc, but, for the
avoidance of any doubt, excluding Babcock & Brown, Inc. or any of its
affiliates), as the case may be (each, a "Selling Entity"), proposes to sell for
cash or any other consideration, either directly or indirectly (by way of the
sale of beneficial ownership interest in any such affiliate or otherwise), any
shares of Surviving Corporation Common Stock
60 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
owned by it, in any transaction other than (x) a public offering of securities,
(y) a sale or other transfer to one of their affiliates or (z) a sale or other
transfer of beneficial ownership in (A) up to 9,000,000 shares of Surviving
Corporation Common Stock to Babcock & Brown, Inc. or any of its affiliates or
(B) up to 12,000,000 shares of Surviving Corporation Common Stock to GRSH (a
"Proposed Sale") and (ii) such Proposed Sale, when considered together with
previous direct or indirect sales of Surviving Corporation Common Stock by the
Selling Entity and any of its affiliates (other than (1) sales or other
transfers to one of their affiliates or (2) sales or other transfers of
beneficial ownership in the shares of Surviving Corporation Common Stock
referred to in clause (z) above), would constitute the sale of the direct or
indirect beneficial ownership of more than 25% of the outstanding shares of
Surviving Corporation Common Stock, then the Selling Entity will notify the
Purchaser or the Purchaser's Estate or Purchaser's Trust (as such terms are
defined in Section 4(a) of the Subscription Agreement), as the case may be, in
writing (a "Notice") of such proposed sale and the material terms of the
Proposed Sale as of the date of the Notice (the "Material Terms") promptly, and
in any event not less than 15 days prior to the consummation of the Proposed
Sale and not more than 5 days after the execution of the definitive agreement
relating to the Proposed Sale, if any (the "Sale Agreement").
(b) If (i) within 10 days of the Purchaser's or the Purchaser's
Estate's or Purchaser's Trust's, as the case may be, receipt of such Notice the
Selling Entity receives from the Purchaser or the Purchaser's Estate or
Purchaser's Trust, as the case may be, a written request (a "Request") to
include shares of Surviving Corporation Common Stock held by the Purchaser or
the Purchaser's Estate or Purchaser's Trust, as the case may be, in the Proposed
Sale (which Request shall be irrevocable unless (x) there shall be a material
adverse change in the Material Terms (including, without limitation, a change in
the Material Terms that would result in the sale price being decreased by more
than 10% from that set forth in the Notice) or (y) if otherwise mutually agreed
to in writing by the Purchaser or the Purchaser's Estate or Purchaser's Trust,
as the case may be, and the Selling Entity) or (ii) notwithstanding that the
Purchaser, the Purchaser's Estate or the Purchaser's Trust, as the case may be,
may have declined to make a Request, the Selling Entity so decides in its sole
discretion, shares of Surviving Corporation Common Stock held by the Purchaser,
the Purchaser's Estate or the Purchaser's Trust, as the case may be, will be
included in the Proposed Sale as provided herein; provided that, in the case of
(i) above, only one Request, which shall be executed by the Purchaser or the
Purchaser's Estate or Purchaser's Trust, as the case may be, may be delivered
with respect to any Proposed Sale for all shares of Surviving Corporation Common
Stock held by the Purchaser or the Purchaser's Estate or Purchaser's Trust.
Promptly after the consummation of the transactions contemplated thereby, the
Selling Entity will furnish the Purchaser, the Purchaser's Trust or the
Purchaser's Estate with a copy of the Sale Agreement, if any.
(c) The number of shares of Surviving Corporation Common Stock that
the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case may
be, will be permitted to include in a Proposed Sale pursuant to a Request, or
that the Selling Entity will be permitted to decide to include
61 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
in a Proposed Sale, will be in the aggregate that number of shares of Surviving
Corporation Common Stock owned collectively by the Purchaser, the Purchaser's
Estate and the Purchaser's Trust, as the case may be, that is equal to the pro
rata portion of the total number of shares proposed to be sold in the Proposed
Sale, based upon the product of (i) the sum of the number of shares of Surviving
Corporation Common Stock then owned by the Purchaser or the Purchaser's Estate
or Purchaser's Trust, as the case may be, plus all shares of Surviving
Corporation Common Stock that the Purchaser or the Purchaser's Estate or
Purchaser's Trust, as the case may be, are then entitled to acquire under an
unexercised option to purchase shares of Surviving Corporation Common Stock, to
the extent such option is then vested and exercisable or would become vested and
exercisable as a result of the consummation of the Proposed Sale (ii) multiplied
by a percentage calculated by dividing the aggregate number of shares of
Surviving Corporation Common Stock that the Selling Entity proposes to sell in
the Proposed Sale by the total number of shares of Surviving Corporation Common
Stock owned by the Selling Entity.
Notwithstanding the foregoing, in the case of any Proposed Sale (i)
the consummation of which is reasonably expected to occur on a date after the
tenth anniversary of the Effective Time and (ii) that would constitute a "Change
of Control" (as defined in the Stock Purchase Agreement of even date herewith
between NIplc and the Purchaser), the Purchaser or the Purchaser's Estate or
Purchaser's Trust, as the case may be, will be permitted to include in such
Proposed Sale pursuant to a Request all shares of Surviving Corporation Common
Stock then owned by the Purchaser or the Purchaser's Estate or Purchaser's
Trust, as the case may be, plus all shares of Surviving Corporation Common Stock
that the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case
may be, are then entitled to acquire under an unexercised option to purchase
shares of Surviving Corporation Common Stock, to the extent such option is then
vested and exercisable or would become vested and exercisable as a result of the
consummation of the Proposed Sale.
(d) Except as may otherwise be provided herein, shares of Surviving
Corporation Common Stock subject to a Request, or that the Selling Entity may
decide will be so included, will be included in a Proposed Sale pursuant hereto
and in any agreements with purchasers relating thereto on the same terms and
subject to the same conditions applicable to the shares of Surviving Corporation
Common Stock which the Selling Entity proposes to sell in the Proposed Sale.
Such terms and conditions shall include, without limitation: the sales price;
the payment of fees, commissions and expenses; the provision of, and
representation and warranty as to, information requested by the Selling Entity;
and the provision of requisite indemnifications; provided that any
indemnification provided by the Purchaser, the Purchaser's Estate or the
Purchaser's Trust shall be pro rata in proportion with the number of shares of
Surviving Corporation Common Stock to be sold. In the case of indirect sales by
the Selling Entity of beneficial ownership of the Surviving Corporation Common
Stock, the sale price for the shares of the Purchaser or the Purchaser's Estate
or Purchaser's Trust, as the case may be, shall be determined by an independent
investment bank or appraisal firm on the basis of the proportion of any sale
price applicable to the Selling Entity that is deemed to be attributable to the
Surviving Corporation alone, and the other
62 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
terms and conditions of the Proposed Sale shall be appropriately adjusted to
reflect, for purposes of the inclusion of the Purchaser's, the Purchaser's
Estate's or the Purchaser's Trust's shares in such Proposed Sale, a sale of the
Surviving Corporation Common Stock. In connection with any such indirect sale
for consideration other than cash, the Purchaser, the Purchaser's Estate or the
Purchaser's Trust, as the case may be, will be entitled to receive a
proportionate amount (determined as described in the preceding sentence) of a
like kind of non-cash compensation, or a proportionate interest therein.
Notwithstanding anything to the contrary contained herein, in connection with
any sale, whether direct or indirect, for consideration other than cash, in the
absolute discretion of the Selling Entity, the shares of the Purchaser or the
Purchaser's Estate or Purchaser's Trust, as the case may be, subject to a
Request may be purchased instead for an amount in cash equal to the fair market
value (determined by an independent investment bank or appraisal firm) of any
non-cash consideration that would otherwise be receivable hereunder.
(v) Custody Agreement and Power of Attorney.
Upon delivering a Request or upon notice that the Selling Entity has
decided to include shares held by the Purchaser, the Purchaser's Estate or the
Purchaser's Trust, as the case may be, in the Proposed Sale, the Purchaser or
the Purchaser's Estate or Purchaser's Trust, as the case may be, will, if
requested by the Selling Entity, execute and deliver a custody agreement and
power of attorney in form and substance satisfactory to the Selling Entity with
respect to the shares of Surviving Corporation Common Stock which are to be sold
by the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case may
be, pursuant hereto (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that the
Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case may be,
will deliver to and deposit in custody with the custodian and attorney-in-fact
named therein a certificate or certificates representing such shares of
Surviving Corporation Common Stock (duly endorsed in blank by the registered
owner or owners thereof) and irrevocably appoint said custodian and
attorney-in-fact as the Purchaser or the Purchaser's Estate's or Purchaser's
Trust's, as the case may be, agent and attorney-in-fact with full power and
authority to act under the Custody Agreement and Power of Attorney on the
Purchaser's or the Purchaser's Estate's or Purchaser's Trust's, as the case may
be, behalf with respect to the matters specified therein.
(vi) Obligations to Purchaser.
(a) The Purchaser or the Purchaser's Estate's or Purchaser's Trust's,
as the case may be, right pursuant hereto to participate in a Proposed Sale
shall be contingent on the Purchaser's or the Purchaser's Estate's or
Purchaser's Trust's, as the case may be, strict compliance with each of the
provisions hereof and the Purchaser's or the Purchaser's Estate's or Purchaser's
Trust's, as the case may be, willingness to execute such documents in connection
therewith as may be reasonably requested by the Selling Entity.
(b) The obligations of the Selling Entity hereunder shall extend only
to the Purchaser or the Purchaser's Estate or Purchaser's Trust, as
63 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
the case may be, and no other of the Purchaser's or the Purchaser's Estate's or
Purchaser's Trust's, as the case may be, successors or assigns shall have any
rights pursuant hereto.
(vii) Notices.
All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given when delivered to the party
to whom it is directed:
(a) If to NIplc, to it at the following address:
Nomura International plc
Nomura House
1 St. Martin's-le-Grand
London EC1A 4NP
Attention: Mr. Guy Hands
(b) If to the Purchaser, to him or her at the address set forth below
under his or her signature;
(c) If to the Purchaser's Estate or Purchaser's Trust, at the address
provided to NIplc by such entity.
or at such other address as any of the above shall have specified by notice in
writing delivered to the others by certified mail.
Any notice which is required to be given to the Purchaser shall, if the
Purchaser is then deceased, be given to the Purchaser's personal representative
if such representative has previously informed NIplc of his or her status and
address by written notice under this Section 4.
(viii) Applicable Law.
The laws of the State of Delaware shall govern the interpretation,
validity and performance of the terms of this Agreement, regardless of the law
that might be applied under principles of conflicts of law. Any suit, action or
proceeding against the Seller, with respect to this Agreement, or any judgment
entered by any court in respect of any thereof, may be brought in any court of
competent jurisdiction in the State of New Jersey, as NIplc may elect in its
sole discretion, and the Seller hereby submits to the non-exclusive jurisdiction
of such courts for the purpose of any such suit, action, proceeding or judgment.
By the execution and delivery of this Agreement, the Seller appoints the
Secretary of the Surviving Corporation, at the executive offices of the
Surviving Corporation in Morristown, New Jersey (or such other place within the
State of New Jersey as may be designated for such purpose), as his or her agent
upon which process may be served in any such suit, action or proceeding. Service
of process upon such agent, together with notice of such service given to the
Seller in the manner provided in Section 4 hereof, shall be deemed in every
respect effective service of process upon him or her in any suit, action or
proceeding. Nothing herein shall in any way be deemed to limit the ability of
NIplc to serve any such writs, process or summonses in any other manner
permitted by applicable law or to obtain jurisdiction over
64 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
the Seller, in such other jurisdictions and in such manner, as may be permitted
by applicable law. The Seller hereby irrevocably waives any objections which he
or she may now or hereafter have to the laying of the venue of any suit, action
or proceeding arising out of or relating to this Agreement brought in any court
of competent jurisdiction in the State of New Jersey, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum. No suit, action or
proceeding against NIplc with respect to this Agreement may be brought in any
court, domestic or foreign, or before any similar domestic or foreign authority
other than in a court of competent jurisdiction in the State of New Jersey, and
the Seller hereby irrevocably waives any right which he or she may otherwise
have had to bring such an action in any other court, domestic or foreign, or
before any similar domestic or foreign authority. NIplc hereby submits to the
jurisdiction of such courts for the purpose of any such suit, action or
proceeding, and by the execution and delivery of this Agreement, the Seller
appoints the Secretary of the Surviving Corporation, at the executive offices of
the Surviving Corporation in Morristown, New Jersey (or such other place within
the State of New Jersey as may be designated for such purpose), as his or her
agent upon which process may be served in any such suit, action or proceeding.
Service of process upon such agent, together with notice of such service given
to NIplc in the manner provided in Section 4 hereof, shall be deemed in every
respect effective service of process upon NIplc in any suit, action or
proceeding. NIplc hereby irrevocably waives any objections which it may now or
hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in any court of competent
jurisdiction in the State of New Jersey, and hereby further irrevocably waives
any claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum.
(ix) Assignability of Certain Rights by NIplc.
If the Selling Entity transfers its interest in the Surviving
Corporation to an affiliate, such affiliate shall assume the obligations
hereunder of the Selling Entity, but such assignment shall not, without the
written consent of the Purchaser or the Purchaser's Estate or Purchaser's Trust,
as the case may be, relieve NIplc of its obligations hereunder.
(x) Binding Effect.
The provisions of this Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns, and shall also inure to the benefit of each affiliate of
NIplc that may become a Selling Entity.
(xi) Purchaser's Acknowledgement.
It is the understanding of the Purchaser that, and he or she hereby
acknowledges, that the Purchaser is aware that no Proposed Sale presently is
contemplated and that such a sale may never occur.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
65 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
NOMURA INTERNATIONAL plc
By:
Name:
Title:
________________________________
Purchaser
________________________________
________________________________
Address of Purchaser
66 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
EXHIBIT D
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (hereinafter called this "Agreement"), dated as
of October 1, 1996, between the several stockholders of AT&T Capital
Corporation, a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), whose names are listed below and all other
stockholders of the Corporation who shall join in and become parties to this
agreement as hereinafter provided (each, a "Subscriber") and Thomas C. Wajnert
(the "Trustee").
RECITALS
WHEREAS, the Subscribers are respectively owners of shares of the
common stock (the "Stock") of the Corporation in the amount set forth opposite
their respective signature hereto;
WHEREAS, the combined holdings of Stock of the Subscribers constitute
a minority of the issued and outstanding Stock of the Corporation;
WHEREAS, the Subscribers desire to pool their Stock for a limited
period of time so as to make more effective their participation in the
management of the Corporation and to facilitate certain transactions involving
the Corporation;
WHEREAS, with a view to the safe and competent management of the
Corporation and the expeditious and efficient involvement of the Corporation in
certain transactions, in each case in the interests of all the stockholders
thereof, the Subscribers are desirous of creating a trust (the "Trust") in the
manner following; and
WHEREAS, the Trustee has agreed to act as trustee of the shares of
Stock to be assigned and delivered hereunder.
It is hereby agreed as follows:
(xii) TRANSFER OF STOCK TO TRUSTEES.
Each of the Subscribers agrees that he or she will assign and deliver
to the Trustee any certificate held by the Subscriber representing shares of
Stock owned by him or her at any time or from time to time by depositing with
the Trustee such certificate or certificates immediately after the issuance
thereof, together with proper and sufficient instruments duly endorsed for the
transfer thereof to the Trustee and with all necessary stock transfer stamps
affixed, and shall do all things necessary for the transfer of the Subscriber's
respective shares of Stock to the Trustees on the books of the Corporation.
(xiii) OTHER STOCKHOLDERS MAY JOIN.
Every stockholder in the Corporation may become a party to this
Agreement by assigning and delivering to the Trustee the certificate or
67 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
certificates representing all shares of Stock owned by such stockholder in the
manner provided in the preceding paragraph and expressly agreeing in writing to
be bound by all of the terms, conditions and obligations of this Agreement as if
such stockholder were an original party (other than the Trustee) hereto.
(xiv) TRUSTEE TO HOLD SUBJECT TO AGREEMENT.
The Trustee shall hold the shares of Stock so transferred to him for
the common benefit of the Subscribers, under the terms and conditions
hereinafter set forth.
(xv) ISSUANCE OF STOCK CERTIFICATES TO TRUSTEE.
(a) The Trustee shall surrender to the proper officers of the
Corporation for cancellation all certificates of Stock which shall be assigned
and delivered to him as herein provided, and in their stead shall procure new
certificates to be issued to him as Trustee under this Agreement. Such
certificates shall state that they are subject to this Agreement, and such fact
shall be noted also in the stock ledger of the Corporation.
(b) If any of the Stock transferred to the Trustee hereunder
represents property pledged by a Subscriber to secure any obligations of such
Subscriber and if, as a condition to permitting the transfer of such Stock to
the Trustee hereunder the pledgee requires the Trustee to pledge and deposit
such Stock with such pledgee, then the Trustee shall so pledge and deposit with
such pledgee such Stock, and assign and transfer to such pledgee all of the
Trustee's right, title and interest in and to such Stock, to be held by such
pledgee in accordance with the original pledge by such Subscriber to the same
extent as if the Trustee were such Subscriber.
(xvi) VOTING TRUST CERTIFICATES.
(a) Upon the deposit with the Trustee by a Subscriber of a certificate
or certificate representing shares of Stock in the manner hereinbefore set
forth, the Trustee shall issue to such Subscriber a voting trust certificate for
the same number of shares as is represented by the certificate or certificates
representing shares of Stock transferred by the Subscriber to the Trustee (each
a "Voting Trust Certificate"). Each such Voting Trust Certificate shall state
that it is issued under this Agreement, and shall set forth the nature and
amount of the beneficial interest thereunder of the person to whom it is issued.
(b) The Voting Trust Certificate shall be substantially in the
following form:
68 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
"Number VTC ... .... Shares
AT&T CAPITAL CORPORATION
(a Delaware corporation)
VOTING TRUST CERTIFICATE
This is to certify that ___________________ (the "Holder") has
deposited with the undersigned as Trustee under the Voting Trust Agreement,
dated as of October 1, 1996 (the "Voting Trust Agreement"), between certain
holders of common stock (the "Stock") of AT&T Capital Corporation, a Delaware
corporation (the "Corporation") and Thomas C. Wajnert (the "Trustee"), a
certificate or certificates representing the number of shares of Stock set forth
above and that, until the termination of the Voting Trust Agreement, the Holder
or his or her assign is entitled to all the benefits and interests specified in
the Voting Trust Agreement arising from the deposit of such shares of Stock, all
as provided in, and subject to the terms of, the Voting Trust Agreement. Until
the termination of the Voting Trust Agreement, the Holder or his or her assign
is entitled (i) to receive payments equal to the amount of dividends, if any,
received by the Trustee upon the shares of Stock represented by this
certificate, less any taxes imposed thereon that the Trustee may be required to
pay thereon or to withhold therefrom under any present or future law and also
less a proportionate share of the expenses of the Trustee and (ii) to vote with
respect to action to be taken by the Trustee pursuant to the procedures set
forth in the Voting Trust Agreement. Until the Trustee shall have actually
delivered a certificate or certificates representing the shares of Stock held by
him to the Holder as specified in the Voting Trust Agreement, and subject to the
terms thereof, the Trustee or his successor in the trust shall, as provided in
the Voting Trust Agreement, possess and be entitled to exercise all rights and
powers of every nature of absolute owner and holder of record of the Stock,
including, without limitation, the right to vote for every purpose and to
consent to or waive any corporate act of the Corporation of any kind, it being
understood that no voting right shall pass to the Holder by virtue of the
ownership of this certificate or by or under any agreement express or implied,
but it being further understood that the Trustee shall be required to vote, or
otherwise take action with respect to, the shares of Stock deposited hereunder
in the manner set forth in the Voting Trust Agreement.
Upon the termination of the Voting Trust Agreement, this certificate
shall be surrendered to the Trustee by the Holder against delivery to the Holder
of a certificate or certificates representing a like number of shares of Stock.
In the event of the dissolution or total or partial liquidation of the
Corporation the money and other property received by the Trustee in respect of
the Stock represented by this certificate shall be paid or delivered to the
Holder of record hereof, but only upon surrender of this certificate in the case
of dissolution or the presentation of this certificate for the notation thereon
of the distribution in case of a partial liquidation.
69 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
To the extent set forth in the Voting Trust Agreement, and subject to
the same restrictions and limitations upon transfer by the Holder of the shares
of Stock deposited hereunder whether pursuant to the terms of any agreement to
which the Holder is subject or otherwise, this certificate and the right, title
and interest in and to the shares of Stock in respect of which this certificate
is issued, are transferable on the books of the Trustee by the registered Holder
hereof in person or by attorney duly authorized, according to the rules
established for that purpose by the Trustee and on surrender hereof properly
assigned; and until so transferred the Trustee may treat the registered Holder
hereof as the owner for all purposes whatsoever except that no delivery of stock
certificates hereunder shall be made without the surrender hereof.
As a condition of making or permitting any transfer or delivery of
stock certificates or Voting Trust Certificates, the Trustee may require the
payment of a sum sufficient to pay or reimburse him for any stamp tax or other
governmental charge in connection therewith and for a proportionate part of his
expenses as Trustee.
The Holder takes this certificate subject to all the terms and
conditions of the Voting Trust Agreement and by acceptance of this certificate
acknowledges and warrants that receipt of the same is for investment purposes
only and not with a view to distribution.
A duplicate original of the Voting Trust Agreement is filed with the
Trustee and with the Corporation.
IN WITNESS WHEREOF, the undersigned Trustee has executed this
certificate as of the ____ day of ___________, ____.
Trustee
(c) The Voting Trust Certificates shall be assignable, to the extent
set forth herein and subject to the restrictions and limitations on transfer
referred to below, and until so transferred the Trustee may treat the registered
holder of the Voting Trust Certificate as the owner thereof for all purposes
whatsoever. Upon any such permitted transfer, and surrender of the transferred
Voting Trust Certificate to the Trustee, together with proper and sufficient
instruments duly endorsed for the transfer thereof to the transferee and with
all necessary stock transfer stamps affixed, the Trustee shall deliver or cause
to be delivered to the transferee a Voting Trust Certificate or Certificate
representing the same number of shares of Stock as set forth in the Voting Trust
Certificate so transferred and surrendered. The Trustee shall keep a list of the
shares of Stock transferred to him, and shall also keep a record of all Voting
Trust Certificates issued or transferred on his books, which records shall
contain the names and addresses of the holders of the Voting Trust Certificates
and the number of shares of Stock represented by each such certificate. Such
list and record shall be open at all reasonable times to inspection by any
Subscriber or by the Corporation. Every assignee or transferee of a Voting Trust
Certificate issued hereunder shall succeed to all the rights hereunder of the
transferor and, by acceptance of such Voting Trust Certificate, become a party
hereto with like effect as though an original Subscriber hereof.
70 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
(xvii) RESTRICTIONS ON TRANSFER OF VOTING TRUST CERTIFICATE.
Each of the Subscribers hereby agrees that during the term of this
Agreement, his or her Voting Trust Certificates will not be sold or transferred
except in accordance with the terms and conditions of this Agreement and subject
to the same restrictions and limitations upon transfer by any Subscriber of the
shares of Stock so deposited with the Trustee whether pursuant to the terms of
any agreement to which a Subscriber is subject, so long as such agreement
remains in effect, or otherwise. The Voting Trust Certificates shall be regarded
as stock of the Corporation, within the meaning of any provision of the Bylaws
of the Corporation imposing conditions and restrictions upon the sale of stock
of the Corporation.
(xviii) RIGHTS OF THE TRUSTEE.
Until the Trustee shall have actually delivered a certificate or
certificates representing the shares of Stock held by him to the Subscriber as
specified herein, and subject to the terms hereof, the Trustee or his successor
in the trust shall possess and be entitled to exercise all rights and powers of
every nature of absolute owner and holder of record of the Stock, including,
without limitation, the right to vote as described below, and the right, upon
the instructions of Subscribers representing a majority of the shares of Stock
subject to this Trust to sell or transfer all, but not less than all, of such
shares, subject to the same restrictions and limitations upon transfer to which
any Subscriber of the shares deposited with the Trustee hereunder is subject,
whether pursuant to the terms of any agreement to which a Subscriber is subject,
so long as such agreement remains in effect, or otherwise. It is expressly
acknowledged and agreed that the Trustee's rights hereunder expressly include,
without limitation, the right to sell or transfer such shares of Stock in
connection with a sale of the Corporation.
(xix) TRUSTEE TO VOTE STOCK.
It shall be the duty of the Trustee, and he shall have full power and
authority, and he is hereby fully empowered and authorized, to represent the
holders of the Voting Trust Certificates and the Stock transferred to the
Trustee as aforesaid, and to vote upon the Stock, as directed by the vote of the
holders of Voting Trust Certificates representing a majority of the Stock
subject to this Trust voting with respect thereto in accordance with reasonable
procedures as may be established from time to time by the Trustee, at all
meetings of the stockholders of the Corporation, in the election of Directors
and upon any and all matters in question, which may be brought before such
meetings, as fully as any stockholder might do if personally present. It is
expressly acknowledged and agreed that the Trustee's right to vote shall
expressly include, without limitation, the right to vote on such fundamental
matters as a proposal of merger or consolidation, or a sale of all or
substantially all of the assets of the Corporation. The Trustee may vote stock
of the Corporation in person or by such person as he may select as his proxy.
71 EXHIBIT 10(f)
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Ended September 30, 1996
(xx) TRUSTEE'S LIABILITY.
The Trustee shall use his best judgment in voting upon the Stock
transferred to him, but shall not be liable for any vote cast, or consent or
waiver given by him, in good faith, and in the absence of gross negligence or
wilful misconduct.
(xxi) DIVIDENDS AND OTHER DISTRIBUTIONS.
(a) Except as provided in the next succeeding sentence, the Trustee
shall collect and receive all dividends that may accrue upon the shares of Stock
subject to this Trust, and, subject to deduction as provided below, shall divide
the same among the holders of the Voting Trust Certificates in proportion to the
number of shares respectively represented by their Voting Trust Certificates.
Notwithstanding the foregoing, the Trustee and the Corporation may provide that
the Corporation shall pay directly to the holders of the Voting Trust
Certificates any or all dividends that may accrue upon shares of Stock subject
to the Trust in proportion to the number of shares respectively represented by
their Voting Trust Certificates and subject to deduction as provided below for
the benefit of the Trustee.
(b) In the event of the dissolution or total or partial liquidation of
the Corporation, the Trustee shall collect and receive all money and other
property in respect of the shares of Stock subject to this Trust, and, subject
to deduction as provided below, shall divide the same among the holders of the
Voting Trust Certificates in proportion to the number of shares respectively
represented by their Voting Trust Certificates, but only upon surrender of such
holders' Voting Trust Certificates in the case of dissolution or the
presentation of their Voting Trust Certificates for the notation thereon of the
distribution in case of a partial liquidation.
(c) In the event of the merger or consolidation of the Corporation, or
a sale of the Corporation or of all or substantially all of its assets, the
Trustee may, in his sole discretion, elect to receive the moneys, securities,
rights or properties to which the holder of the shares of Stock subject to this
Trust is entitled, and, subject to deduction as provided below, to divide the
same among the holders of the Voting Trust Certificates in proportion to the
number of shares respectively represented by their Voting Trust Certificates,
but only upon surrender of such holders' Voting Trust Certificates in the case
of the merger or consolidation of the Corporation or the sale of the
Corporation, or the presentation of their Voting Trust Certificates for the
notation thereon of the distribution in case of a sale of all or substantially
all of the assets of the Corporation.
(d) Notwithstanding anything to the contrary contained herein, the
Trustee may deduct from any payment or distribution to any Subscribers
hereunder, or all of them, the amount of (i) any taxes imposed thereon that the
Trustee may be required to pay thereon or to withhold therefrom under any
present or future law, (ii) a sum sufficient to pay or reimburse him for any
stamp tax or other governmental charge in connection therewith any
72 EXHIBIT 10(f)
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Ended September 30, 1996
transfer or delivery of any stock certificate or Voting Trust Certificate and
(iii) a proportionate share of the expenses of the Trustee.
(xxii) TRUSTEE'S INDEMNITY.
The Trustee shall be entitled to be indemnified fully out of the
dividends coming to his hands against all costs, charges, expenses and other
liabilities properly incurred by him in the exercise of any power conferred upon
him by these presents; and the Subscribers, and each of them, hereby covenant
with the Trustee that in the event of the monies and securities in his hands
being insufficient for that purpose, the Subscribers, and each of them, will in
proportion to the amount of their respective shares and interests hold harmless
and keep indemnified the Trustee of and from all loss or damage which he may
sustain or be put to by reason of anything he may lawfully do in the execution
of this Trust.
(xxiii) APPOINTMENT OF SUBSTITUTE OR SUCCESSOR TRUSTEE.
In the event of the Trustee's dying or resigning or refusing or
becoming unable to act, the Trustee may designate, by written instrument duly
acknowledged, a substitute or successor Trustee, or if the Trustee cannot, or
does not within 10 days of an event described above, so designate a substitute
or successor Trustee, then the holders of the Voting Trust Certificates by the
vote of the holders of Voting Trust Certificates representing a majority of the
Stock deposited hereunder voting with respect thereto, shall appoint a
substitute or successor Trustee, and any person so designate or appointed shall
thereupon be vested with all the duties, powers and authority of a Trustee
hereunder as if originally named herein. Prior to the commencement of his
duties, the Trustee and, so long as such subscription agreement remain in
effect, each Trustee subsequently designated or appointed shall sign an
agreement with the Corporation substantially similar to the subscription
agreements pursuant to which the original Subscribers purchased their original
shares of Stock and shall thus signify his or her consent to be bound thereby
and his or her agreement to perform the terms thereof. All of the terms,
provisions and conditions of such subscription agreements shall apply to all
Trustees hereof and hereunder with the same force and effect as if such Trustees
had originally signed such agreements.
(xxiv) COMPENSATION.
The Trustee shall serve without compensation. The Trustee shall have
the right to incur and pay such reasonable expenses and charges and to employ
such counsel as he may deem necessary or desirable in the performance of his
duties hereunder. Any such expenses or charges incurred or paid may be charged
pro rata to the holders of the Voting Trust Certificates.
(xxv) CONTINUANCE AND TERMINATION OF TRUST.
Unless the Trustee exercises his right, which is hereby expressly
granted to him, to terminate the Trust beforehand, the Trust hereby created
shall be continued until the date that this 21 years from the date of this
Agreement, and shall then terminate. Upon termination of the Trust, the
73 EXHIBIT 10(f)
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Ended September 30, 1996
Trustee shall, upon the surrender of the Voting Trust Certificates by the
respective holders thereof assign and transfer to them the number of shares of
Stock thereby represented or may deposit with the Corporation the certificate or
certificates representing the Stock held by the Trustee, together with proper
and sufficient instruments duly endorsed for the transfer thereof and with all
necessary stock transfer stamps affixed, with instructions to distribute the
same to the registered holders of the Voting Trust Certificates in the manner
above provided, and the Trustee shall thereupon be relieved and discharged from
all further obligation and liability hereunder.
(xxvi) NOTICE.
Any notice to be given to the holders of Voting Trust Certificates
hereunder shall be sufficiently given if mailed to the registered holders of
Voting Trust Certificates at the addresses furnished respectively by such
holders to the Trustee.
(xxvii) LOST TRUST CERTIFICATES.
In case any Voting Trust Certificate issued under this Agreement shall
become mutilated, destroyed, stolen or lost, the Trustee, in his sole
discretion, may authorize the issuance of a new Voting Trust Certificate and
thereupon issue a new Voting Trust Certificate in substitution therefor for a
like number of shares. The applicant for such substituted Voting Trust
Certificate shall furnish to the Trustee evidence to his satisfaction of the
mutilation, destruction, theft or loss of such Voting Trust Certificate,
together with such indemnity to the Trustee as he may require in his sole
discretion.
(xxviii) TRUSTEE AND THE CORPORATION.
Nothing herein contained shall disqualify the Trustee hereunder from
voting for himself to serve or from serving the Corporation or any of its
affiliates as an officer or director or in any other capacity or from voting for
himself to receive or receiving compensation for such services. The Trustee
shall not be disqualified from his office by dealing or contracting with the
Corporation nor shall any transaction or contract of the Corporation be void or
voidable by reason of the fact that the Trustee or any corporation, partnership,
association or other organization of which the Trustee is a director or officer,
or has a financial interest, is in any way interested in such transaction or
contract, nor shall the Trustee be liable to account to the Corporation or to
any stockholder thereof for any profits realized by, from or through any such
transaction or contract by reason of the fact that the Trustee or any
corporation, partnership, association or other organization of which the Trustee
is a director or officer, or has a financial interest, was in any way interested
in such transaction or contract.
(xxix) MISCELLANEOUS.
(a) Successors and Assigns. This Agreement shall be binding on and
accrue to the benefit of the parties hereto and their respective
74 EXHIBIT 10(f)
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Ended September 30, 1996
executors, administrators, legal representatives, heirs, assigns and successors.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts together constitute one
and the same Agreement, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(c) Severability. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(d) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(e) Deposit of Agreement. One fully conformed copy of this Agreement
shall be deposited by the Trustee at the Corporation's registered office in the
Sate of Delaware, and shall be subject to the same examination by a stockholder
of the Corporation as are the books and records of the Corporation, and shall be
subject to examination by any holder of a Voting Trust Certificate, in person or
by attorney or other agent, during normal business hours. A fully conformed copy
of this Agreement shall also retained by the Trustee at his office, and shall be
subject to examination by any holder of a Voting Trust Certificate, in person or
by attorney or other agent, during normal business hours.
(xxx) GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed therein.
(xxxi) ACCEPTANCE OF TRUST BY TRUSTEE.
The Trustee hereby accepts the above Trust subject to all of the
terms, conditions and reservations herein contained, and agrees that he will
exercise his powers and perform his duties as Trustee as herein set forth;
provided, that nothing herein contained shall be construed to prevent the
Trustee from resigning and discharging himself from the Trust.
IN WITNESS WHEREOF, the Subscribers have hereunto set their hands and
seals and set opposite their respective signatures the number of shares
75 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
held by them respectively, and the Trustee, in token of his acceptance hereby
created, have hereunto set his hand and seal.
[SEAL]
Trustee
[SEAL]
[Subscriber]
76 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
EXHIBIT E
FIRST AMENDMENT TO THE PLEDGE AGREEMENT
FIRST AMENDMENT TO THE PLEDGE AGREEMENT (hereinafter called this
"Amendment"), dated as of September 30, 1996, by and between Thomas C. Wajnert,
an individual residing at the address set forth at the end of this Agreement
(the "Pledgor"), and AT&T CAPITAL CORPORATION, a Delaware corporation (the
"Pledgee").
RECITALS
WHEREAS, the Pledgor and the Pledgee entered into the Pledge Agreement
(the "Original Agreement"), dated as of August 4, 1993, pursuant to which the
Pledgor pledged certain shares of the Common Stock of the Pledgor (the "Pledged
Shares") to the Pledgee in exchange for a loan from the Pledgee;
WHEREAS, pursuant to the Agreement and Plan of Merger among the
Pledgee, AT&T Corp., a New York corporation, Hercules Limited, a Cayman Islands
company ("Parent"), and Antigua Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of Parent ("Merger Sub"), dated as of June 5, 1996
(as amended, the "Merger Agreement"), Merger Sub will be merged (the "Merger")
with and into the Pledgee, after which the Pledgee will continue its corporate
existence as the surviving corporation (the "Surviving Corporation");
WHEREAS, pursuant to a Subscription Agreement (the "Subscription
Agreement") between the Pledgor and Merger Sub, dated as of September 30, 1996,
the Pledgor intends, immediately prior to the effective time of the Merger (the
"Effective Time"), to exchange (the "Management Share Exchange") the Pledged
Shares for certain shares (the "Merger Sub Shares") of Common Stock, par value
$.01 per share, of Merger Sub;
WHEREAS, the Merger Sub Shares will be converted at the Effective Time
pursuant to the Merger Agreement into shares (the "Surviving Corporation
Shares") of Common Stock, par value $.01 per share, of the Surviving
Corporation;
WHEREAS, pursuant to a Voting Trust Agreement (the "Voting Trust
Agreement") to be entered into between, among others, the Pledgor and Thomas C.
Wajnert, as trustee under the Voting Trust Agreement (the "Voting Trustee"),
record title to the Surviving Corporation Shares will be transferred to the
Voting Trustee, such shares to be held by the Voting Trustee for the common
benefit of the Pledgor and certain other stockholders under the Voting Trust
Agreement; and
WHEREAS, the Pledgor and the Pledgee wish to (i) amend the terms of
the Original Agreement to provide that the Merger Sub Shares and the Surviving
Corporation Common Stock will be considered to be "Purchased Shares" under the
terms of the Original Agreement, and (ii) permit the release of the Pledged
Shares for the purpose of (a) consummating the Management Share Exchange
pursuant to the Subscription Agreement and the subsequent conversion of the
Merger Sub Shares into the Surviving Corporation Shares pursuant to the Merger
Agreement and (b) permitting the
77 EXHIBIT 10(f)
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Ended September 30, 1996
transfer of record title to the Surviving Corporation Shares to the Voting
Trustee pursuant to the Voting Trust Agreement.
NOW, THEREFORE, to implement the foregoing and in consideration of the
premises and of the mutual agreements contained herein, the parties hereto agree
as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
which are defined in the Original Agreement are used herein as therein defined.
2. Recitals. (a) The first recital of the Original Agreement is hereby
amended by deleting the parenthetical phrase "(the 'Purchased Shares')" at the
end of such recital.
(b) The second recital of the Original Agreement is hereby amended by
inserting the parenthetical phrase "(as defined below)" immediately after the
words "Purchased Shares".
3. Section 1. (a) Section 1 of the Original Agreement is hereby
amended by deleting the parenthetical phrase "(as defined in Section 3(d)
hereof)" in the second sentence thereof.
(b) Section 1 of the Original Agreement is also hereby amended by
adding the following paragraph to the end of such Section:
The term "Purchased Shares" as used herein means (i) the shares of
Common Stock (the "Original Shares") of the Pledgee purchased by the Pledgor
pursuant to the Plan and the Stock Purchase Agreement referred to in the first
recital above, as long as such Original Shares are outstanding; (ii) the shares
(the "Merger Sub Shares") of Common Stock, par value $.01 per share, of Antigua
Acquisition Corporation, a Delaware corporation ("Merger Sub"), for which the
Original Shares will be exchanged (together with the payment of $5.00 in cash,
if necessary, to permit the issuance of a whole number of Merger Sub Shares)
pursuant to a Subscription Agreement, dated as of September 30, 1996 between the
Pledgee and Merger Sub, as long as such Merger Sub Shares are outstanding; and
(iii) thereafter, the shares of Common Stock, par value $.01, of the Pledgee
into which the Merger Sub Shares will be converted pursuant to the Agreement and
Plan of Merger among the Pledgee, AT&T Corp., a New York corporation, Hercules
Limited, a Cayman Islands company, and Merger Sub, dated as of June 5, 1996, as
amended, pursuant to which Merger Sub will be merged with and into the Pledgee,
and after which the Pledgee will continue its corporate existence as the
surviving corporation.
4. New Section 14. The Original Agreement is hereby amended by adding
the following new Section 14 immediately after Section 13 thereof:
14. Voting Trust. In the event that the Pledgee permits the Pledgor to
enter into a voting trust agreement and to transfer the Purchased Shares to a
Person in trust under such voting trust agreement (a "Voting Trustee"), then,
such Voting Trustee shall be required as a condition to such transfer to pledge
and deposit with the Pledgee the Purchased Shares in accordance with Section 1
hereof to the same extent as if such Voting
78 EXHIBIT 10(f)
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Ended September 30, 1996
Trustee were the Pledgor and the other provisions of this Agreement that refer
to the Pledgor shall be deemed also to refer to such Voting Trustee, provided
that Section 3 hereof shall be deemed, with respect to the Purchased Shares, to
refer to such Voting Trustee only and not to the Pledgor.
5. The Pledgee shall release the Pledged Shares into the possession of
the Pledgor for the sole purpose of allowing the Pledgor to participate in (a)
the Management Share Exchange, and (b) the subsequent conversion of Merger Sub
Shares into the Surviving Corporation Shares pursuant to the Merger Agreement;
provided that the Pledgor shall (i) not dispose of the original Pledged Shares,
the Merger Sub Shares or the Surviving Corporation Shares (together, the
"Shares") except (x) to place such Shares in the custody of the Pledgee, (y) in
the case of the original Pledged Shares, to deliver such shares to Merger Sub
pursuant to the Management Share Exchange or (z) in the case of the Merger Sub
Shares, to transfer such shares to the Voting Trustee pursuant to the Voting
Trust Agreement; (ii) not permit any of the Shares to become subject to any lien
or encumbrance; and (iii) exercise such care in storing and preserving any of
the Shares in the Pledgor's possession as a person who has an obligation to
deliver property to another person is required to exercise by law.
While any of the Shares are in the possession of the Pledgor pursuant
to this Section, the rights of the Pledgee (except the right to possess any of
the Shares) and the obligations of the Pledgor under the Pledge Agreement shall
remain in full force and effect to the extent permitted by law.
The Pledgor shall immediately return any of the Shares which are in
the Pledgor's possession to the Pledgee if either (i) the Merger is consummated
pursuant to the Merger Agreement, or (ii) it becomes likely, in the reasonable
judgment of the Pledgee, that either the Management Share Exchange or the Merger
shall not be consummated on a timely basis.
6. Continuing Effect of Agreement. Except as expressly amended herein,
all of the terms and conditions of the Original Agreement shall remain in full
force and effect without amendment.
7. Effectiveness. This Amendment shall become effective on and as of
the time immediately preceding the Effective Time.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW JERSEY WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
79 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the parties hereto as of the date first written above.
AT&T CAPITAL CORPORATION
By: ______________________
Name:
Title:
______________________
(Name of Pledgor)
Address:
______________________
______________________
______________________
80 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
EXHIBIT F
FIRST AMENDMENT TO THE PROMISSORY NOTE
FIRST AMENDMENT TO THE PROMISSORY NOTE (hereinafter called this
"Amendment"), dated as of October 1, 1996, by and betweem Thomas C. Wajnert, an
individual residing at the address set forth at the end of this Agreement (the
"Borrower"), and AT&T CAPITAL CORPORATION, a Delaware corporation (the
"Company").
RECITALS
WHEREAS, the Borrower issued to the Company a promissory note (the
"Promissory Note"), dated as of August 4, 1993 pursuant to the AT&T Capital
Corporation 1993 Leveraged Stock Purchase Plan (the "Plan") and the Stock
Purchase Agreement entered into between the Borrower and the Company pursuant to
the Plan;
WHEREAS, pursuant to the Agreement and Plan of Merger among the
Company, AT&T Corp., a New York corporation, Hercules Limited, a Cayman Islands
company ("Parent"), and Antigua Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of Parent ("Merger Sub"), dated as of June 5, 1996
(as amended), Merger Sub was merged (the "Merger") with and into the Company,
following which the Company is continuing its corporate existence as the
surviving corporation;
WHEREAS, pursuant to a Subscription Agreement (the "Subscription
Agreement") between Merger Sub and the Borrower, dated as of September 30, 1996,
the Company (as successor to Merger Sub) and the Borrower are obligated to amend
the Promissory Note as promptly as practicable following consummation of the
Merger;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
which are defined in the Promissory Note are used herein as therein defined.
2. Maturity Date. The first paragraph of the Promissory Note is hereby
amended by deleting the phrase "August 31, 2000 (the 'Maturity Date'), provided
that such Maturity Date may be extended by up to one (1) year pursuant to
Section 3.2.2. of the Plan (as defined below)" in the first sentence thereof and
substituting in lieu thereof the phrase "October 1, 2006 (the 'Maturity Date'),
provided that such Maturity Date may be extended by the Company pursuant to
Section 15 of the Subscription Agreement".
3. Section 1. The first sentence of Section 1 of the Promissory Note
is hereby amended by deleting the words "a rate of 6.00 percent (%) per annum"
therefrom and replacing them with the words "a rate of 7.13 percent (%) per
annum".
81 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
4. Section 5. (a) Section 5(b) of the Promissory Note is hereby
amended by deleting such section in its entirety and substituting in lieu
therefor the following:
(b) In the event that the Borrower at any time desires to obtain a release
of all or any part of any Pledged Property securing the Loan, whether for the
purpose of selling such Pledged Property or otherwise, as a condition to such
release the Borrower shall make arrangements satisfactory to the Company for the
repayment under this Note of an amount equal to the entire Adjusted Loan
Balance.
(b) Section 5(c) of the Promissory Note is hereby amended by deleting
such section in its entirety.
(c) Section 5(d) of the Promissory Note is hereby amended by deleting
such section in its entirety and substituting in lieu thereof the following:
(c) Any prepayment made pursuant to this Section 5 shall be applied to
principal and interest in the same proportion as the amounts of principal and
interest owed pursuant to the Promissory Note, at the time of such prepayment,
bear to the sum of such interest and principal amounts owed.
5. Continuing Effect of Agreement. Except as expressly amended herein,
all of the terms and conditions of the Promissory Note shall remain in full
force and effect without amendment. Without limiting the generality of the
foregoing, the Adjusted Loan Balance of the Promissory Note as of the date
hereof shall not affected hereby and, except as expressly amended herein,
neither the release of Pledged Property for the purpose of effecting the
transactions contemplated by the Subscription Agreement nor any other matter in
connection herewith or therewith shall be deemed to release or discharge any
obligation for payment under the Promissory Note.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW JERSEY WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the parties hereto as of the date first written above.
82 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
AT&T CAPITAL CORPORATION
By: ______________________
Name:
Title:
______________________
(Name of Borrower)
Address:
______________________
______________________
______________________
83 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Exhibit D
Benefit Plans
Retirement Plans
1. Compensation Limit Excess Plan
2. Excess Benefit Plan
3. Executive Benefit Plan
4. Retirement and Savings Plan
5. Supplemental Executive Retirement Plan
Health and Welfare Benefit Plans and Programs
1. Senior Management Basic Life Insurance Program
2. Senior Management Individual Life Insurance Program
3. Senior Management Long-Term Disability Program 1
4. Child/Elder Care Reimbursement Account Plan
5. Dental Expense Plan
6. Health Care Reimbursement Account Plan
7. Life and Accidental Loss Insurance Plan
8. Long-Term Disability Plan
9. Medical Expense Plan
10. Vision Care Plan
11. Group Legal Services Plan
12. Long-Term Care Plan
13. Short-Term Disability Plan
84 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Exhibit E
Perquisites
1. Health-related
Health Club Program
Annual Physical
2. Travel
First-class business travel
Use of company plane (or charter aircraft as appropriate) for business
purposes and for personal purposes (in accordance with prior practices which
include reimbursement of the Company for such personal use)
Spousal travel at Company expense for trade association and other
business meetings (in accordance with prior practices)
3. Clubs
Luncheon Clubs
- Metropolitan Club
- Morristown Club
- Park Avenue Club
Eligible (along with other executives) for
Company's corporate membership in country club
- Fiddlers Elbow Golf Club
4. Other
Executive Car Plan
Car and driver (in accordance with prior
practices)
Financial Counseling Plan
Priority use of Company office and apartment in
New York City
85 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
Exhibit F
SEPARATION AGREEMENT AND GENERAL RELEASE
For purposes of this Separation Agreement and General Release (the "General
Release"), the "Company" shall mean _______________ Corporation and its
respective divisions, subsidiaries and affiliated companies.
In consideration of the fact that I, Thomas C. Wajnert (the "Executive") have
voluntarily and of my own free will, elected to accept a lump sum payment in the
amount of $____________ (the "Termination Amount") and the Company has agreed to
pay me the Termination Amount, I acknowledge and agree to the following:
1. I understand that as of ______________ (the "Date of Termination") my
employment with the Company will terminate.
2. I also understand that, pursuant to the Older Workers Benefit Protection Act
of 1990, I have the right and am encouraged to consult with an attorney before
signing this Separation Agreement and General Release, I have twenty-one (21)
days to consider the General Release before signing it, and I may revoke the
General Release within seven calendar days after signing it. I acknowledge that
the Company has informed me of my rights set forth in the immediately preceding
sentence. For revocation to be effective, written notice must be received by the
Company no later than the close of business on the seventh day after I sign this
Separation Agreement and General Release. I understand that this revocation can
be made by delivering the written notice of revocation to the [________________
Corporation, Director of Human Resources, 44 Whippany Road, Morristown, New
Jersey 07960].
3. I realize that there are various state and federal laws that govern my
employment relationship with the Company and/or prohibit employment
discrimination on the basis of age, color, race, gender, sexual
preference/orientation, marital status, national origin, mental or physical
disability, religious affiliation or veteran status and that these laws are
enforced through the courts and agencies such as the Equal Employment
Opportunity Commission, Department of Labor and State Human Rights Agencies.
Such laws include, but are not limited to, Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act, as amended, 42 U.S.C. Section
1981, etc. In consideration of the Termination Amount, I hereby agree to give up
any and all rights I may have under these or any other laws with respect to my
employment and termination of employment with the Company.
4. Subject to paragraph 5 below, on behalf of myself, my representatives, heirs,
executors, administrators, successors and assigns, I release and forever
discharge the Company, its divisions, affiliates, subsidiaries, branches,
parents, predecessors, successors, assigns, directors, officers, trustees,
representatives, agents and employees stockholders, administrators, attorneys,
insurers, fiduciaries or employee benefit plans and programs and the
administrators and fiduciaries thereof past, present or future ("Releasees")
from any and all debts, obligations, claims,
86 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
including claims for attorney's fees and costs, charges, demands, judgments,
promises, covenants, agreements, contracts, actions or causes of action known or
unknown, suspected or unsuspected, of every kind and nature whatsoever, from the
beginning of the world, which were or could have been raised, which may
heretofore have existed and which may now exist against any of the Releasees
with respect to, or arising out of, my employment or termination of employment
with the Company (collectively "Claims").
This includes, but is not limited to, Claims arising under arising under
the Age Discrimination in Employment Act of 1967, as amended, 9 U.S.C. ss. 626,
et seq., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ss.
2000e, et seq., the Civil Rights Act of 1871, as amended, 42 U.S.C. ss. 1981, et
seq., the Americans With Disabilities Act, 42 U.S.C. ss. 12101, et seq., the
Rehabilitation Act of 1973, as amended, 29 U.S.C. ss. 701, et seq., the Family
and Medical Leave Act of 1993, 29 U.S.C. ss. 2601 et seq., the Fair Labor
Standards Act, 29 U.S.C. ss. 201, et seq., the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. ss. 1001, et seq., the Worker
Adjustment and Retraining Act, 29 U.S.C. ss. 2101, et seq., federal, state or
local laws regarding employment discrimination and/or federal, state or local
laws of any type or description regarding the employment of labor.
The Claims released also include all claims arising under the United States
or any state constitutions; all claims arising under any Executive Order or
derived from or based upon any federal regulations; all common law claims
including claims for wrongful discharge, public policy claims, claims for breach
of an express or implied contract, claims for breach of an implied covenant of
good faith and fair dealing, whistleblower claims, claims for intentional
infliction of emotional distress, negligent and/or intentional
misrepresentation, defamation, and tortuous interference with contract or
prospective economic advantage; all claims for any compensation including back
wages, front pay, fringe benefits, liquidated damages, or any other form of
economic loss; and all claims for damages due to personal injury, including
damages for mental anguish, emotional distress, pain and suffering, humiliation,
and punitive damages with respect to, or arising out of, my employment or
termination of employment with the Company.
In addition, I hereby represent and acknowledge that I have not brought any
suit, brought charges, filed any grievance or arbitration or commenced any other
proceeding, administrative or judicial, against any of the Releasees in any
court of law or equity, or before any administrative agency, or any other forum
with respect to any matter arising or derivative from my employment with the
Company or the termination of my employment with the Company that are currently
pending, and on my own behalf and on behalf of my representatives, heirs,
executors, administrators, agents, successors and assigns, I hereby covenant and
agree not to sue, bring charges, file any grievance or arbitration or commence
any other proceeding, administrative or judicial, against any of the Releasees
in any court of law or equity, on any debts, obligations, promises, covenants,
collective bargaining obligations, agreements, contracts, endorsements, bonds,
controversies, suits or causes known or unknown, suspected or unsuspected, of
every kind and nature whatsoever, from the beginning of the world, which were or
could have been raised, which may heretofore have existed and which may now
exist against any of the Releasees, including,
87 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30,1996
but not limited to, those: arising under the Age Discrimination in Employment
Act of 1967, as amended, 9 U.S.C. ss. 626, et seq., Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. ss. 2000e, et seq., the Civil Rights
Act of 1871, as amended, 42 U.S.C. ss. 1981, et seq., the Americans With
Disabilities Act, 42 U.S.C. ss. 12101, et seq., the Rehabilitation Act of 1973,
as amended, 29 U.S.C. ss. 701, et seq., the Family and Medical Leave Act of
1993, 29 U.S.C. ss. '2601 et seq., the Fair Labor Standards Act, 29 U.S.C. ss.
201, et seq., the Employee Retirement Income Security Act of 1974, as amended,
29 U.S.C. ss. 1001, et seq., the Worker Adjustment and Retraining Act, 29 U.S.C.
ss. 2101, et seq., federal, state or local laws regarding employment
discrimination and/or federal, state or local laws of any type or description
regarding the employment of labor; arising from my employment with the Company,
my separation from employment with the Releasees, or the actions or conduct of
any of the Releasees towards me in connection with my employment or termination
of employment with the Company up to and including the date of this General
Release, except for a claim that Defendants have failed to comply with the terms
of this General Release.
With respect to any charges that have been or may be filed by others on my
behalf, either individually or as part of a class, concerning events or actions
relating to my employment or the termination of my employment and which occurred
on or before the date of this General Release, I additionally waive and release
any right I may have to recover in any such lawsuit or proceeding, and will use
my reasonable best efforts, as requested in writing by any Releasee, to
discontinue such actions or proceedings on my behalf. I intend that this General
Release shall, to the maximum extent permitted by law, discharge each of the
Releasees from any Claim released herein. In addition, I shall as soon as
practicable after receipt thereof remit to the Company any amounts paid to me as
a result of any actions or proceedings referred to in this paragraph.
If I breach this paragraph, I understand that I will be liable for all
expenses, including costs and reasonable attorney's fees, incurred by any
Releasee in defending the lawsuit or charge of discrimination, regardless of the
outcome. I agree to pay such expenses within thirty (30) calendar days of
written demand [to whom at what address?]. This paragraph is not intended to
limit me from instituting legal action for the sole purpose of enforcing this
General Release.
5. Notwithstanding anything else herein to the contrary, this General Release
does not waive or release claims that may arise after the date this General
Release is executed and which are based on acts or omissions occurring after the
date I sign this Release. In addition, this Release shall not affect (a) the
obligations of the Company set forth this Release or in the employment agreement
dated [September __, 1996] between the Company and me or other obligations that,
by their terms, are to be performed after the date hereof (including, without
limitation, obligations to me under any stock option, stock award or incentive
plans or agreements or obligations under any pension plan or other benefit plan,
all of which shall remain in effect in accordance with their terms), (b)
obligations to indemnify me respecting acts or omissions in connection with my
service as an officer or employee of the Company or (c) any right I may have to
obtain contribution in the event of the entry of judgment against me as a result
88 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
of any act or failure to act for which both I and the Company are jointly
responsible.
6. In accordance with my existing and continuing obligations to the Company, I
have returned or will promptly return to the Company, all Company property then
in my possession, custody or control, (and make all reasonable efforts to
retrieve all Company property formerly in my possession) at any time, including,
but not limited to, notes, keys, card keys or security passes, Company
identification cards, credit or phone cards, files, records, computer access
codes, computer programs, instruction manuals, business plans, and other
property relating to the business of the Company, but excluding personal
correspondence, rolodexes and other items of a personal nature. I understand and
agree that after the Date of Termination, I will no longer be authorized to
incur any expenses, obligations or liabilities on behalf of the Company. I will
submit any claims or vouchers for reimbursement of business expenses.
7. I affirm my obligation to comply fully with the terms of Section 12 of my
employment agreement dated September 30, 1996.
In addition, for a period of three years from the Date of Termination, I
shall not publish, cause to be published or write for publication any books,
articles or other materials concerning the Company, its divisions or affiliates
or my employment with the Company.
I shall not disclose to anyone the terms of the General Release, other than
to my family members and my legal and financial advisors, unless required to do
so by subpoena issued by a court or other body with apparent jurisdiction
(provided I give the Company notice that I have received any such subpoena
within 3 days after I receive any such subpoena in order that the Company may
take action to quash any such subpoena as it deems appropriate), without the
prior written consent of the Company.
I will not utter or issue any disparaging or derogatory remark, or make any
untruthful statement, about any of the Releasees. The Company's Board of
Directors will not utter or issue any disparaging or derogatory remark, or make
any untruthful statement, about me. I also agree that I will not in any way
assist, and or participate in the pursuit of any claims or actions brought
against any of the Releasees that relate to Claims released by this General
Release, unless required to do so by subpoena issued by a court or other body
with apparent jurisdiction (provided I give the Company notice that I have
received any such subpoena within 3 days after I receive any such subpoena in
order that the Company may take action to quash any such subpoena as it deems
appropriate).
8. I understand that the Company will pay to an outplacement services provider
reasonable and documented fees for outplacement services rendered to me.
9. The construction, interpretation and performance of this Separation Agreement
and General Release shall be governed by the laws of the State of New Jersey
applicable to contracts made and to be performed therein, without giving effect
to the principles thereof relating to the conflict of laws. I hereby agree to
submit to the exclusive jurisdiction of the United States District Court for the
District of New Jersey, or any court of the
89 EXHIBIT 10(f)
FORM 10-Q for the Quarter
Ended September 30, 1996
state of New Jersey located in _________ county, with respect to all aspects of
the enforcement of this General Release.
10. I understand and agree that money damages are not a sufficient remedy for
any actual or threatened breach of this Separation Agreement and General Release
by me, and that, in addition to all other remedies, the Company will be entitled
to specific performance and injunctive or other equitable relief as a remedy for
any such breach.
11. In the event that any one or more of the provisions contained in this
Separation Agreement and General Release shall for any reason be held to be
unenforceable in any respect under the law of any state or of the United States
of America, such unenforceability shall not affect any other provision but, with
respect only to that jurisdiction holding the provision to be unenforceable,
this Separation Agreement and General Release shall then be construed as if such
unenforceable provision or provisions had never been contained herein.
12. This Separation Agreement and General Release contains the entire agreement
between the Company and me and fully supersedes any and all prior agreements or
understandings pertaining to the subject matter hereof. I represent and
acknowledge that in executing this Separation Agreement and General Release I
have not relied upon any representation or statement not set forth herein made
by any of the Releasees or by any of the Releasee's agents, representatives or
attorneys with regard to the subject matter hereof.
BY SIGNING THIS SEPARATION AGREEMENT AND GENERAL RELEASE, I STATE THAT; I HAVE
READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AGREE
WITH EVERYTHING IN IT; I AM AWARE OF MY RIGHT TO CONSULT AN ATTORNEY BEFORE
SIGNING IT; AND I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.
__________________________ ____________________________________
Company Representative Executive's Signature
____________________________________
Executive's Name Printed