EX-10.E.IX



 





Exhibit 10(e)(ix)




FORM OF




CHANGE OF CONTROL EMPLOYMENT AGREEMENT




     AGREEMENT by and between Schering-Plough Corporation, a New Jersey
corporation (the “Company”) and ___, (the “Executive”), is
dated as of the ___day of ___, 200.



     The Board of Directors of the Company (the “Board”), has determined that
it is in the best interests of the Company and its shareholders to assure that
the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control
(as defined below) of the Company. The Board believes it is imperative to
diminish the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control
and to encourage the Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of
other corporations. Therefore, in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement.



     NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:



     1. Certain Definitions.



     (a) The “Effective Date” shall mean the first date during the Change of
Control Period (as defined in Section 1(b)) on which a Change of Control (as
defined in Section 2) occurs. Anything in this Agreement to the contrary
notwithstanding, if a Section 409A Change in Control Event (as defined in
Appendix A) occurs and if the Executive’s employment with the Company is
terminated prior to the date on which such Section 409A Change in Control Event
occurs, and if it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or a Section 409A
Change in Control Event or (ii) otherwise arose in connection with or in
anticipation of a Change of Control or Section 409A Change in Control Event,
then for all purposes of this Agreement the “Effective Date” shall mean the
date immediately prior to the date of such termination of employment.



     (b) The “Change of Control Period” shall mean the period commencing on
the date hereof and ending on the earlier of (i) the third anniversary of the
date hereof and (ii) except as otherwise provided in Section 1(a), the date the
Executive’s employment terminates for any reason prior to the Effective Date;
provided, however, that commencing on the third anniversary of the date hereof,
and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the “Renewal Date”),
the Change of Control Period shall be automatically extended so as to terminate
on the earlier of (x) the first anniversary of such Renewal Date and (y) except
as otherwise provided in Section 1(a), the date the Executive’s employment
terminates for any reason prior to the Effective Date, unless at least three
months prior to such Renewal Date the Company shall have given notice to the
Executive that the Change of Control Period shall not be so extended.



     2. Change of Control. For the purpose of this Agreement, a “Change of
Control” shall mean the happening of any of the following events:



 









 





     (a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership
(within the meaning of Rule 13d 3 promulgated under the Exchange Act) of
securities of the Company where such acquisition causes such Person to own 20%
or more of either (i) the then outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”) or (ii) the combined voting
power of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors (the “Outstanding Company Voting
Securities”); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not be deemed to result in a Change of Control:
(i) any acquisition directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or (iv) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of subsection (c) of this
Section 2; and provided, further, that if any Person’s beneficial ownership of
the Outstanding Company Voting Securities reaches or exceeds 20% as a result
of a transaction described in clause (i) or (ii) above, and such Person
subsequently acquires beneficial ownership of additional voting securities of
the Company, such subsequent acquisition shall be treated as an acquisition
that causes such Person to own 20% or more of the Outstanding Company Voting
Securities; or



     (b) individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Company’s shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or



     (c) consummation of a reorganization, merger, statutory share exchange
or consolidation or similar corporate transaction involving the Company or any
of its subsidiaries, or a sale or other disposition of all or substantially
all of the assets of the Company or the acquisition of assets or stock of
another entity by the Company or any of its subsidiaries (each, a “Business
Combination”), in each case, unless, following such Business Combination, (i)
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be,
(ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership
existed prior to the Business Combination and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing
for such Business Combination; or



     (d) approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.



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     3. Employment Period. The Company hereby agrees to continue the Executive
in its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the earlier of (x) the [third]
[second] [first] anniversary of such date and (y) the Executive’s 65th birthday
(the “Employment Period”).



     4. Terms of Employment.



     (a) Position and Duties.




               (i) During the Employment Period, (A) the Executive’s position (including
status, offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material respects with
the most significant of those held, exercised and assigned at any time during
the 120-day period immediately preceding the Effective Date and (B) the
Executive’s services shall be performed at the location where the Executive was
employed immediately preceding the Effective Date or any office or location
less than 35 miles from, and in the same state as, such location.




               (ii) During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive agrees to
devote appropriate attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use the
Executive’s best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not materially interfere with the performance of the
Executive’s responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date without materially interfering with the performance of the Executive’s
responsibilities to the Company, the continued conduct of such activities (or
the conduct of activities similar in nature and scope thereto) subsequent to
the Effective Date shall not thereafter be deemed to interfere with the
performance of the Executive’s responsibilities to the Company.



     (b) Compensation.




               (i) Base Salary. During the Employment Period, the Executive shall
receive, in accordance with the Company’s normal payroll practices in effect
from time to time for its other similarly situated peer executives, an annual
base salary (“Annual Base Salary”) at least equal to the highest annualized
rate of base salary paid or payable, including any base salary which has been
earned but deferred, to the Executive by the Company and its affiliated
companies during the twelve-month period immediately preceding the month in
which the Effective Date occurs. During the Employment Period, the Annual Base
Salary shall be reviewed no more than 12 months after the last salary increase
awarded to the Executive prior to the Effective Date and thereafter at least
annually. Any increase in Annual Base Salary shall not serve to limit or reduce
any other obligation to the Executive under this Agreement. Annual Base Salary
shall not be reduced after any such increase and the term Annual Base Salary as
utilized in this Agreement shall refer to Annual Base Salary as so increased.
As used in this Agreement, the term “affiliated companies” shall include any
company controlled by, controlling or under common control with the Company.




               (ii) Annual Bonus. In addition to Annual Base Salary, the Executive
shall be awarded, for each fiscal year ending during the Employment Period, an
annual bonus in cash at least equal to the Executive’s highest annual target
incentive opportunity under the Company’s annual incentive plan applicable to
the Executive (the “Incentive Plan”), or any comparable bonus under any
predecessor or successor plan, for any of the immediately preceding three full
fiscal years prior to the Effective Date (the “Annual Bonus”). Each such
Annual Bonus shall be paid no later than March 15 of the fiscal year next



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following the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus, in accordance
with Code section 409A, pursuant to an applicable deferred compensation plan of
the Company.




               (iii) Incentive, Savings and Retirement Plans. During the Employment
Period, the Executive shall be entitled to participate in all incentive,
profit-sharing, stock option, stock award, savings and retirement plans,
practices, policies, programs and arrangements applicable generally to other
similarly situated peer executives of the Company and its affiliated companies,
but in no event shall such plans, practices, policies, programs and
arrangements provide the Executive with incentive opportunities (cash or
equity, and measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less
favorable, in the aggregate, than the most favorable of those provided by the
Company and its affiliated companies for the Executive under such plans,
practices, policies, programs and arrangements as in effect at any time during
the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, those provided generally at any time after the
Effective Date to other similarly situated peer executives of the Company and
its affiliated companies.




               (iv) Welfare Benefit Plans. During the Employment Period, the Executive
and/or the Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit plans,
practices, policies, programs and arrangements provided by the Company and its
affiliated companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans, practices, policies, programs and arrangements) to
the extent applicable generally to other similarly situated peer executives of
the Company and its affiliated companies, but in no event shall such plans,
practices, policies, programs and arrangements provide the Executive with
benefits which are less favorable, in the aggregate, than the most favorable of
such plans, practices, policies, programs and arrangements in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided generally
at any time after the Effective Date to other similarly situated peer
executives of the Company and its affiliated companies. If, however,
Executive’s participation in any such plan, practice, policy, program or
arrangement could result in adverse or unintended tax consequences to any
participant (including the Executive), the Company shall be entitled to pay to
Executive the cost of equivalent benefits outside such plan, practice policy,
program or arrangement, or provide Executive with substantially equivalent
benefits through a separate program (including the provision of such benefits
through the purchase of insurance), without regard to the tax treatment
applicable to such payment or separate program, in lieu of permitting the
Executive to participate in such plan, practice, policy, program or
arrangement.




               (v) Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable business expenses incurred by the Executive
during the Employment Period in accordance with the most favorable policies,
practices and procedures of the Company and its affiliated companies in effect
for the Executive at any time during the 120-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other similarly situated peer
executives of the Company and its affiliated companies. Such reimbursement
shall be made no later than March 15 of the year following the year in which
such expense was incurred.




               (vi) Fringe Benefits. During the Employment Period, the Executive shall
be entitled to fringe benefits, including, without limitation, reimbursement
for tax and financial planning services, payment of club dues, and, if
applicable, use of an automobile and payment of related expenses and use of
Company aircraft, in accordance with the most favorable plans, practices and
policies of the Company and its affiliated companies in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally
at any time thereafter with respect to other similarly situated peer executives
of the Company and its affiliated companies. Any reimbursements to the
Executive in connection with fringe benefit costs shall be made no later than
March 15 of the year following the year in which such costs were incurred. To
the extent



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required by applicable law, such fringe benefits shall result in imputed income
that shall be subject to withholding from the Executive’s wages in the amount
and manner prescribed by such law.




               (vii) Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to personal secretarial and other
assistance, at least substantially equivalent to the most favorable of the
foregoing provided to the Executive by the Company and its affiliated companies
at any time during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as those provided generally at any time
thereafter with respect to other similarly situated peer executives of the
Company and its affiliated companies.




               (viii) Vacation. During the Employment Period, the Executive shall be
entitled to an amount of paid vacation determined in accordance with the most
favorable plans and practices of the Company and its affiliated companies as in
effect for the Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other similarly
situated peer executives of the Company and its affiliated companies.



     5. Termination of Employment.



     (a) Death or Disability. The Executive’s employment shall terminate
automatically upon the Executive’s death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance
with Section 14(b) of this Agreement of its intention to terminate the
Executive’s employment. In such event, the Executive’s employment with the
Company shall terminate effective on the 30th day after receipt of such notice
by the Executive (the “Disability Effective Date”), provided that, within the
30 days after such receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. For purposes of this Agreement,
“Disability” shall mean the absence of the Executive from the Executive’s
duties with the Company on a full-time basis for 180 consecutive business days
as a result of incapacity due to mental or physical illness which is determined
to be total and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s legal
representative.



     (b) Cause. The Company may terminate the Executive’s employment during
the Employment Period for Cause. For purposes of this Agreement, “Cause” shall
mean termination initiated by the Company or by the Executive incident to or
connected with a finding that the Executive has engaged, whether in connection
with Executive’s employment with the Company or otherwise, in misappropriation,
theft, embezzlement, kick-backs, bribery, or other deliberate, gross or willful
misconduct or dishonest acts or omissions, including, but not limited to,
commission of a felony.



     (c) Good Reason. The Executive’s employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, “Good Reason” shall
mean any of the events described in (i)- (iii) below, that occur without the
Executive’s express written consent, if the Company fails to cure such events
within 20 business days after receiving notice thereof from the Executive:




               (i) the assignment to the Executive of any duties that are materially
inconsistent with the Executive’s education, training and experience, or a
significant diminution in the Executive’s authorities, responsibilities, status
or title (as described in this Agreement), it being understood that (A) a
change in the person to whom the Executive reports or (B) modifications to
organizational responsibilities resulting in changes to the Executive’s
functional areas of responsibility that do not significantly diminish
Executive’s core role in the Company, do not constitute “Good Reason”;




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               (ii) any significant reduction by the Company of the Executive’s total
compensation in the aggregate, unless such reduction was part of a reduction
approved by the Company’s Board of Directors (or a Committee thereof) for one
or more similarly situated peer executives in addition to the Executive;




               (iii) any failure by the Company to comply with any of the provisions of
Section 4 of this Agreement.



     (d) Notice of Termination. Any termination by the Company for Cause, or
by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 14(b) of
this Agreement. For purposes of this Agreement, a “Notice of Termination”
means a written notice which (i) indicates the specific termination provision
in this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so indicated and
(iii) if the Date of Termination (as defined below) is other than the date of
receipt of such notice, specifies the termination date (which date shall be not
more than thirty days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from asserting such fact
or circumstance in enforcing the Executive’s or the Company’s rights hereunder.



     (e) Date of Termination. “Date of Termination” means (i) if the
Executive’s employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive’s
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive’s employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the
case may be. Notwithstanding the foregoing, the Date of Termination shall in
no event be earlier than the date on which the Executive has incurred a
“separation from service” within the meaning of Treas. Prop. Reg. 1.409A-1(h),
or in subsequent IRS guidance under Code section 409A.



     6. Obligations of the Company upon Termination.



     (a) Involuntary and Good Reason Terminations. If, during the Employment
Period, the Company shall terminate the Executive’s employment other than for
Cause or Disability or the Executive shall terminate employment for Good
Reason, then provided that the Executive signs a Satisfactory Release (as
defined below) within 21 days following later of the Date of Termination and
the date such Release is presented to the Executive, and does not revoke it
within 7 days after the date he executes such Release, the Company shall:




               (i) pay to the Executive, within 30 days after the effective date of the
Satisfactory Release, a lump-sum cash payment equal to the aggregate of the
following amounts:




               A. the sum of (1) the Executive’s Annual Base Salary through the Date
of Termination to the extent not theretofore paid, (2) the product of (x)
the Executive’s Annual Bonus and (y) a fraction, the numerator of which is
the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (3) any accrued
vacation pay, in each case to the extent not theretofore paid (the sum of
the amounts described in clauses (1), (2), and (3) shall be hereinafter
referred to as the “Accrued Obligations”); and




               B. the amount equal to the product of (1) the lesser of (x) [three]
[two] [one] and (y) the number of days after the Date of Termination and on
or before the Executive’s 65th birthday, divided by 365, times (2) the sum
of (A) the Executive’s Annual Base Salary, (B) the



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Executive’s Annual Bonus and (C) the greater of the highest contributions
made under the Company’s Employees’ Profit Sharing Incentive Plan and the
Company’s Profit Sharing Benefits Equalization Plan or the highest aggregate
Company contribution to the Executive’s account under the Company’s
qualified and nonqualified defined contribution retirement plans, for any of
the three calendar years immediately preceding the Date of Termination; and




               C. an amount equal to the excess of (1) the sum of (x) the lump-sum
actuarial equivalent (as of the date that this enhanced SERP benefit is paid
to the Executive or his beneficiaries (the “SERP Payout Date)) of the normal
retirement benefit under the Company’s qualified defined benefit retirement
plan (the “Retirement Plan”) (utilizing actuarial assumptions no less
favorable to the Executive than those in effect under the Company’s
Retirement Plan immediately prior to the Effective Date) and (y) the lump
sum actuarial equivalent of the normal retirement benefit under any excess
or supplemental retirement plans in which the Executive participates
(together, the “SERP”) as of the SERP Payout Date (utilizing actuarial
assumptions no less favorable to the Executive than those in effect under
the SERP immediately prior to the Effective Date) that the Executive would
have received if the Executive’s employment had continued for [three] [two]
[one] years after the Date of Termination or through age 65, if sooner,
assuming for this purpose that all accrued benefits were fully vested, and,
assuming that the Executive’s compensation in each of the [three] [two]
[one] years (or the shorter period to age 65, if applicable) would have been
that required by Section 4(b)(i) and Section 4(b)(ii), over (2) the lump sum
actuarial equivalent of the Executive’s actual normal retirement benefit
(paid or payable), if any, under the Retirement Plan and the SERP based on
the Executive’s actual age, service and compensation as of the Date of
Termination;




               (ii) for the lesser of (x) [three] [two] [one] years after the
Executive’s Date of Termination and (y) the period through the Executive’s 65th
birthday, or such longer period as may be provided by the terms of the
appropriate plan, program, practice, policy or arrangement, continue health and
welfare benefits to the Executive (and the Executive’s family, if applicable)
at least equal to those that would have been provided in accordance with the
plans, programs, practices, policies and arrangements described in Section
4(b)(iv) of this Agreement had the Executive’s employment not been terminated
or, if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other similarly situated peer executives of the
Company and its affiliated companies and their families; provided, however,
that such benefits coverage shall be secondary to any health and welfare
benefits coverage for which the Executive becomes eligible under any plan or
arrangement sponsored by a subsequent employer of the Executive; and provided
further, that if Executive’s participation in any such program could result in
adverse or unintended tax consequences to any participant in such program
(including the Executive), the Company shall be entitled pay such Executive the
cost of equivalent benefits outside such program or provide Executive with
substantially equivalent benefits through a separate program (including the
provision of such benefits through the purchase of insurance) without regard to
the tax treatment applicable to such separate program in lieu of permitting the
Executive to participate in such program;




               (iii) to the extent not theretofore paid or provided, timely pay or
provide to the Executive, in accordance with the terms of any plan, program,
policy or practice or contract or agreement of the Company and its affiliated
companies, any other amounts or benefits required to be paid or provided or
which the Executive is eligible to receive under such plan, program, policy or
practice or contract or agreement, including without limitation, any
compensation previously deferred by the Executive under an applicable deferred
compensation plan of the Company, together with any accrued interest or
earnings thereon, (such other amounts and benefits shall be hereinafter
referred to as the “Other Benefits”);




               (iv) waive any and all “reduction factors” imposed as a result of
Executive’s age with respect to the Executive’s nonqualified supplemental or
excess employee pension benefit plan if the Executive is at least age 50 as of
the Date of Termination;




               (v) in addition to the benefits provided in subparagraph (a)(ii) of this
Section 6, if the Executive is age 50 or older as of the Date of Termination,
the Executive shall become immediately eligible for coverage under the
Company’s retiree medical plan or any replacement or successor plan



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(including, without limitation, any supplemental coverage applicable to
executives); provided, however, that, if the Company is unable to provide the
Executive with coverage under such plan, the Company shall provide the
Executive with separate comparable coverage but in no event less favorable, in
the aggregate, than the most favorable of such plans, policies, programs,
practices or arrangements in effect for retirees immediately prior to the
Effective Date.



     For purposes of this Section 6(a), “Satisfactory Release” shall mean a
release of claims in a form reasonably prescribed by the Company that (1)
releases, and forever discharges, all claims that Executive has or may have
against the Company and its affiliated companies and its and their employees,
directors and agents (other than claims relating to Other Benefits), and (2)
becomes irrevocable if not revoked by Executive within seven (7) days after he
signs it; provided that the form of release shall not contain any
post-employment covenants.



     (b) Death. If the Executive’s employment is terminated by reason of the
Executive’s death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive’s legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to the
Executive’s estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(b) shall
include, without limitation, and the Executive’s estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and affiliated companies to the estates and
beneficiaries of similarly situated peer executives of the Company and such
affiliated companies under such plans, programs, practices, policies and
arrangements relating to death benefits and survivor benefits, if any, as in
effect with respect to other similarly situated peer executives and their
beneficiaries at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive’s estate and/or the
Executive’s beneficiaries, as in effect on the date of the Executive’s death
with respect to other similarly situated peer executives of the Company and its
affiliated companies and their beneficiaries.



     (c) Disability. If the Executive’s employment is terminated by reason of
the Executive’s Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(c) shall
include, without limitation, and the Executive shall be entitled after the
Disability Effective Date to receive, disability and other benefits at least
equal to the most favorable of those generally provided by the Company and its
affiliated companies to disabled executives and/or their families in accordance
with such plans, programs, practices, policies and arrangement relating to
disability, if any, as in effect generally with respect to other similarly
situated peer executives and their families at any time during the 120-day
period immediately preceding the Effective Date or, if more favorable to the
Executive and/or the Executive’s family, as in effect at any time thereafter
generally with respect to other similarly situated peer executives of the
Company and its affiliated companies and their families.



     (d) Termination for Cause; or Voluntary Termination Without Good Reason.
If the Executive’s employment shall be terminated for Cause during the
Employment Period, this Agreement shall terminate without further obligations
to the Executive other than the obligation to pay to the Executive (x) his
Annual Base Salary through the Date of Termination and (y) Other Benefits, in
each case to the extent theretofore unpaid. If the Executive voluntarily
terminates employment during the Employment Period, excluding a termination for
Good Reason, this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days after the Date of
Termination.



     7. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive’s continuing or future participation in any plan, program,
practice, policy or arrangement provided by the



- 8 -









 






Company or any of its affiliated companies and for which the Executive may
qualify, nor, subject to Section 14(g), shall anything herein limit or
otherwise affect such rights as the Executive may have under any contract or
agreement with the Company or any of its affiliated companies. Amounts that
are vested benefits or that the Executive is otherwise entitled to receive
under any plan, policy, practice or program of or any contract or agreement
with the Company or any of its affiliated companies at or subsequent to the
Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by
this Agreement. Except as specifically expressed herein, nothing contained
herein is intended to alter the terms of any benefit plan or program.
Notwithstanding anything in this Agreement, the Company or its affiliated
companies, as applicable, reserves the right to amend or terminate any of its
or their employee benefit plans at any time. In the event that an amendment to
an employee benefit plan adopted after the Effective Date specifically
conflicts with an express promise made in this Agreement, the Company shall
have the right to honor the promise through comparable means outside the
affected employee benefit plan without regard to any differences in the tax
impact to the Executive.



     8. Full Settlement. Except as otherwise provided in Sections 6, the
Company’s obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. The Company’s
obligation to make payments or provide benefits under this Agreement and
otherwise to perform its obligations hereunder shall be in lieu and in full
settlement of all severance or termination benefits or payments that the
Executive has received or is entitled to receive under any other any other
plan, policy, practice or program of or any contract or agreement with the
Company or any of its affiliated companies in connection with the Executive’s
termination of employment. In no event shall the Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement
and such amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay, to the full extent permitted by
law, all legal fees and expenses up to $25,000 which the Executive may
reasonably incur as a result of any contest by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a
result of any contest by the Executive about the amount of any payment pursuant
to this Agreement); provided, however, that if the Company ultimately prevails
in a court of competent jurisdiction with regard to any such contest, the
Executive agrees to reimburse the Company for any and all legal fees and
expenses paid by the Company in accordance with this sentence. Such amounts
shall become payable within 30 days after the expiration of the applicable
period to appeal such outcome or, if an appeal is taken, 30 days after final
resolution of such appeal. Interest shall accrue on any delayed payment at the
applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.



     9. Certain Additional Payments.



     (a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or benefit in the nature of compensation (within the meaning of Section
280G(b)(2) of the Code) made or provided to or for the benefit of the
Executive, whether under the terms of this Agreement or otherwise (each, a
“Payment”) would be subject to the excise tax imposed by Section 4999 of the
Code (together with any interest or penalties imposed with respect to such
excise tax, the “Excise Tax”), then the Executive shall be entitled to receive
an additional payment (“Gross-Up Payment”), at or before the time the Excise
Tax is due (whether by withholding or otherwise) in an amount such that after
payment by the Executive of all taxes (and any interest or penalties imposed
with respect to such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The
Company’s obligation to make Gross-Up Payments under this Section 9 shall not
be conditioned upon the Executive’s termination of employment.




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     (b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment and the assumptions to
be utilized in arriving at such determination, shall be made by such nationally
recognized certified public accounting firm that the Company’s may designate
(the “Accounting Firm”). The Accounting Firm shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting a Change of Control, the Executive may appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder).
All fees and expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall
be paid by the Company to the Executive within ten days of the receipt of the
Accounting Firm’s determination. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty
in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
(“Underpayment”), consistent with the calculations required to be made
hereunder. In the event the Company exhausts or does not seek to pursue its
remedies pursuant to Section 9(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.



     (c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which the Executive gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:




               (i) give the Company any information reasonably requested by the
Company relating to such claim,




               (ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,




               (iii) cooperate with the Company in good faith in order effectively to
contest such claim, and




               (iv) permit the Company to participate in any proceedings relating to
such claim;



provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest, and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax, income tax or other tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole discretion,
may pursue or forgo any and all administrative appeals, proceedings, hearings
and conferences with the applicable taxing authority in respect of such claim
and may, at its sole discretion, either direct the Executive to pay the tax
claimed and sue for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however, that,
if the Company directs the



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Executive to pay such claim and sue for a refund, the Company shall pay the
amount of such payment to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such payment or with respect to any imputed income in
connection with such payment; and further provided, that any extension of the
statute of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company’s control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder, and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.



     (d) If, after the receipt by the Executive of a Gross-Up Payment or an
amount paid by the Company pursuant to Section 9(c), the Executive becomes
entitled to receive any refund with respect to the Excise Tax to which such
Gross-Up Payment relates or with respect to such claim, the Executive shall
(subject to the Company’s complying with the requirements of Section 9(c), if
applicable) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount paid by the Company pursuant to
Section 9(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to
the expiration of 30 days after such determination, then such payment shall be
forgiven and shall not be required to be repaid and the amount of such payment
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.



     (e) Notwithstanding any other provision of this Agreement, the Company
may, in its sole discretion, withhold and pay over to the Internal Revenue
Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of any Gross-Up Payment, and the Executive hereby
consents to such withholding.



     10. Code Section 409A Provisions. Notwithstanding anything in this
Agreement or elsewhere to the contrary, if, based on Internal Revenue Service
guidance available as of the date the payment or provision of any amount or
other benefit is specified to be made under this Agreement or elsewhere, the
Company reasonably determines that the payment or provision of such amount or
other benefit at such specified time may potentially subject the Executive to
“additional tax” under Section 409A(a)(1)(B) of the Code (together with any
interest or penalties imposed with respect to, or in connection with, such tax,
a “409A Tax”) with respect to the payment of such amount or the provision of
such benefit, and if payment or provision thereof at a later date would likely
avoid any such 409A Tax, then the payment or provision thereof shall be
postponed to the earliest business day on which the Company reasonably
determines such amount or benefit can be paid or provided without incurring any
such 409A Tax (the “Delayed Payment Date”). In addition, if the Company
reasonably determines that such 409A Tax with respect to the provision of a
benefit can likely be avoided by replacing the benefit with the payment of an
amount in cash equal to the cost of a substantially equivalent benefit then, in
lieu of providing such benefit, the Company may make such cash payment, subject
to the preceding sentence. In the event a benefit is to be provided during the
period commencing on the Executive’s separation from service and ending on the
Delayed Payment Date and the provision of such benefit during that period would
be treated as a payment of nonqualified deferred compensation in violation of
Section 409A(a)(2)(B)(i) of the Code, then continuation of such benefit during
that period shall be conditioned on payment by the Executive of the full
premium or other cost of coverage and as of the Delayed Payment Date the
Company shall reimburse the Executive for the premiums or other cost of
coverage paid by the Executive, which but for this paragraph would have been
paid by the Company. Any such reimbursement shall include interest at the rate
set out in the last sentence of this Section. The Company and the Executive
may agree to take other actions to avoid the imposition of 409A Tax at such
time and in such manner as permitted under Section 409A. In the event that
this Section 10 requires a delay of any payment, such payment shall be
accumulated and paid in a single lump sum on the Delayed Payment Date together
with interest for the period of delay, compounded monthly, equal to the prime
or base lending rate then used by CitiBank, N.A., in New York City and in
effect as of the date the payment would otherwise have been provided.



- 11 -









 





     11. Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the
Executive during the Executive’s employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). After termination of the Executive’s employment with the
Company, the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the
Company and those designated by it. In no event shall an asserted violation of
the provisions of this Section 11 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this
Agreement.



     12. Intellectual Property. To the fullest extent permitted by applicable
law, all intellectual property (including patents, trademarks, and copyrights)
which are made, developed or acquired by Executive in the course of Executive’s
employment with the Company will be and remain the absolute property of the
Company, and Executive shall, upon the Company’s reasonable request, assist the
Company in perfecting and defending its rights to such intellectual property.



     13. Successors.



     (a) This Agreement is personal to the Executive and, without the prior
written consent of the Company shall not be assignable by the Executive other
than by will or the laws of descent and distribution. Except as otherwise
required by law, no right to receive payments hereunder shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation or to execution, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect; except, however,
that this Agreement shall inure to the benefit of and be enforceable by the
executors, administrators or other legal representatives of the Executive or
the Executive’s estate.



     (b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.



     (c) The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, “Company” shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.



     14. Miscellaneous.



     (a) This Agreement shall be governed by and construed in accordance with
the internal substantive laws of the State of New Jersey, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.



     (b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:



     If to the Executive:



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[Name and Address]



     If to the Company:




Schering-Plough Corporation

2000 Galloping Hill Road

Kenilworth, New Jersey 07033

Attention: Corporate Secretary



or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.



     (c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.



     (d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to
be withheld pursuant to any applicable law or regulation.



     (e) No provisions of this Agreement may be waived, modified or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
both Executive and the Chief Executive Officer of the Company. The Executive’s
or the Company’s failure to insist upon strict compliance with any provision of
this Agreement or the failure to assert any right the Executive or the Company
may have hereunder, including, without limitation, the right of the Executive
to terminate employment for Good Reason pursuant to Section 5(c) of this
Agreement, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.



     (f) Except as herein otherwise specifically provided, references in this
Agreement to employment by the Company shall include employment by affiliates
of the Company, and the obligation of the company to make any payment or
provide any benefit to the Executive hereunder shall be deemed satisfied to the
extent that such benefit is made or such payment is provided by an affiliate of
the Company.



     (g) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Executive
and the Company, the employment of the Executive by the Company is “at will”
and, subject to Section 1(a) hereof, prior to the Effective Date, the
Executive’s employment may be terminated by either the Executive or the Company
at any time prior to the Effective Date, in which case the Executive shall have
no further rights under this Agreement. From and after the Effective Date this
Agreement shall supersede any prior agreement between the parties with respect
to the subject matter hereof.



     15. Disputes. All disputes arising out of or relating to this Agreement,
or to the Executive’s employment by the Company, will be determined by
arbitration conducted before a single arbitrator selected by the parties, in
accordance with the labor and employment rules of the American Arbitration
Association then in effect, and at the office of the Association located
closest to the Company’s headquarters. The costs of arbitration will be borne
by the losing party. The arbitrator shall be empowered by the parties to enter
all relief that a court could enter.



     16. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of the
subject matter contained herein. There shall be no contractual or similar
restrictions on Executive’s right to terminate his employment with the Company,
or on his post-employment activities, other than those expressly set forth in
this Agreement. Except as otherwise set forth in this Agreement, the
respective rights and obligations of the parties under this Agreement shall
survive any termination of Executive’s employment. This Agreement may be



- 13 -









 






executed in counterparts, each of which shall be deemed an original and all of
which together shall be deemed to be one and the same document. Signatures
delivered by facsimile shall be effective for all purposes.



- 14 -









 





     IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.



	 	 	 	 	 
	 	EXECUTIVE



 	 
	 	 	 
	 	 	 
	 	[Name of Executive]	 
	 



	 	 	 	 	 
	 	SCHERING-PLOUGH CORPORATION	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	By	 	 
	 	Fred Hassan

Chairman of the Board and

Chief Executive Officer

	 



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Appendix A




Section 409A Change in Control Event





     For purposes of Section 1(a), the term “Section 409A Change in Control
Event” shall mean any of the following events:



     (a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of securities of the Company where such acquisition causes such
Person to own more than 50% of either (x) the then outstanding Shares of the
Company (the “Outstanding Shares”) or (y) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Voting Securities”); provided, however,
that for purposes of this subsection (a) the following acquisitions will not
constitute a Section 409A Change in Control Event: (i) any acquisition directly
from the Company, (ii) any acquisition by the Company, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (iv) any acquisition by
any corporation pursuant to a transaction which complies with clauses (i), (ii)
and (iii) of subsection (c) below; and provided, further, that if any Person’s
beneficial ownership of the Outstanding Shares or Outstanding Voting Securities
reaches or exceeds 50% as a result of a prior transaction, and such Person
subsequently acquires beneficial ownership of additional Shares or additional
voting securities of the Company, such subsequent acquisition will not be
treated as an acquisition that causes such Person to own more than 50% of the
Outstanding Shares or Outstanding Voting Securities;



     (b) during any 12-month period, individuals who, as of the first day of
such period, constitute the Board (the “Incumbent Board”) cease for any reason
to constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the beginning of such 12-month
period whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board will be considered as though such
individual were a member of the Incumbent Board;



     (c) consummation of a reorganization, merger, statutory share exchange or
consolidation or similar corporate transaction involving the Company, or the
acquisition of assets or stock of another entity by the Company (each a
“Business Combination”), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were beneficial owners, respectively, of the Outstanding Shares or Outstanding
Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of, respectfully, the then
outstanding shares of the common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election
of directors, as the case may be, of the corporation resulting from such
Business Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or substantially all of the
Company’s assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination, of the Outstanding Shares and Outstanding Voting
Securities, as the case may be, (ii no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, more than 50% of,
respectfully, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation, except to the extent
that such ownership existed prior to the Business Combination and (iii) at
least a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent Board on
the later of (x) the time of the execution of the initial agreement, (y) the
action of the Board providing for such Business Combination or (z) the
beginning of the 12-month period ending on the effective date of the Business
Combination;



     (d) any one Person acquires (or has acquired during any 12-month period
ending on the date of the most recent acquisition by such Person) assets of the
Company having a fair market value equal to or



- 16 -









 






more than 40% of the total gross fair market value of all of the assets of
the Company immediately prior to such sale, other than an acquisition by (i) a
Person who was a shareholder of the Company immediately before the asset
acquisition in exchange for or with respect to such Person’s Shares, (ii) an
entity whose total or voting power immediately after the transfer is at least
50% owned, directly or indirectly, by the Company, (iii) a person or group
that, immediately after the transfer, directly or indirectly owns at least 50%
of the total value or voting power of the outstanding stock of the Company or
(iv) an entity whose total value or voting power immediately after the
transfer is at least 50% owned, directly or indirectly, by a person described
in clause (C) above; or



     (e) the complete liquidation of the Company.



     The definition of Section 409A Change in Control Event for purposes of
Section 1(a) of this Agreement is intended to conform to the description of
“Change in Control Events” in Treas. Prop. Reg. 1.409A-3(g)(5), or in
subsequent IRS guidance describing what constitutes a Change in Control Event
for purposes of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”). Accordingly, no Section 409A Change in Control Event will be
deemed to occur with respect to a transaction or event described in paragraphs
(a) through (e) above unless the transaction or event would constitute a
“Change in Control Event” as described in Treas. Prop. Reg. 1.409A-3(g)(5), or
in subsequent IRS guidance under Code section 409A.




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