3. Position and Duties.          (a) Position. The Executive hereby agrees to serve as an officer of the Company and toperform all duties assigned by the Company commensurate with his or her position. The Executiveshall devote the Executive’s best efforts to the performance of services to the Company inaccordance with the terms of this Agreement and as the Company reasonably may request.          (b) Other Activities. While employed pursuant to this Agreement, the Executive shallnot, other than in the performance of duties inherent in, and in furtherance of, the business ofthe Company, engage in any other business or commercial activity as an employee, consultant, or inany other capacity, whether or not any compensation is received therefore. Nothing in thepreceding sentence shall prevent the Executive from (i) making and managing personal investments,(ii) performing occasional assistance to family members and friends, including but not limited toservice as a director of a family-owned or private business enterprise, (iii) engaging in communityand/or charitable activities, including without limitation service as a director, trustee orofficer of an educational, welfare, social, religious or civic organization or charity, (iv)serving as a trustee or director or similar position of a public corporation or public businessenterprise, but for only one such public corporation or public business enterprise at any one time,or (v) engaging in such other activities as are approved in writing by the Chief Executive Officer.The Executive shall refrain, however, from engaging in any of the acts described in clauses (i) —(v) of the preceding sentence to the extent that they singly or in the aggregate interfere with theproper performance of the Executive’s duties and responsibilities to the Company or areinconsistent with Section 10 of this Agreement.     4. Compensation. In consideration of the performance of his duties under thisAgreement, the Executive shall be entitled to receive the salary, bonus and benefits set forth onSchedule 1. All amounts payable to the Executive under this Section 4 shall be paid in accordancewith the Company’s benefit plans and programs and regular payroll practices (*e.g*., timing ofpayments and standard employee deductions, such as income and employment tax withholdings, medicalbenefit contributions and parking fees, among others). No additional compensation shall be payableto the Executive by reason of the number of hours worked or any hours worked on Saturdays, Sundaysor holidays, by reason of special responsibilities assumed (whether on behalf of the Company or anyof its subsidiaries or affiliates), special projects completed, or otherwise. The Executive’scompensation shall be reviewed by the Chief Executive Officer, the Board of Directors of theCompany (the “**Board**”) or the Compensation Committee of the Board (the “**Compensation Committee**”)periodically for possible merit increases and other changes as such reviewer deems appropriate.     5. Termination of Employment. Either party may terminate the Executive’s employmentunder this Agreement at any time and for any reason, without advance notice. However:          (a) Termination for Cause*.* If the Company terminates the Executive’s employment forCause, then the Company shall pay to the Executive his base salary, through the Date of Termination(as defined in Section 5(g) of this Agreement) at the rate in effect at the time the Companyprovides the Notice of Termination (as defined in Section 5(f)). The Company also shall pay to theExecutive all other amounts and benefits to which the Executive is entitled under any pension plan,retirement savings plan, equity participation plan, stock purchase plan, medical benefits and otherbenefits of the Company or provided by law. The Company shall have no further obligations to theExecutive under this Agreement. Without waiving any rights the Company may have hereunder orotherwise, the Company expressly reserves its rights to
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proceed against the Executive for damages in connection with any claimor cause of action that the Company may have arising out of or related to the Executive’semployment hereunder. “**Cause**” means (i) the Executive’s willful and continued failure (other thanas a result of incapacity due to physical or mental illness or after the Executive issues a Noticeof Termination for Good Reason (as defined in Section 5(d)) to substantially perform theExecutive’s duties, after the Board delivers to the Executive a written demand for substantialperformance that specifically identifies the manner in which the Board believes that the Executivehas not substantially performed the Executive’s duties, (ii) the Executive’s willful and continuedfailure (other than as a result of incapacity due to physical or mental illness or after theExecutive’s issuance of a Notice of Termination for Good Reason) to substantially follow and complywith the specific and lawful directives of the Board, as reasonably determined by the Board, afterthe Board delivers to the Executive a written demand for substantial performance that specificallyidentifies the manner in which the Board believes that the Executive has not substantially followedor complied with the directives of the Board, (iii) the Executive’s willful commission of an act offraud or dishonesty that results in material economic or financial injury to the Company, or (iv)the Executive’s willful engagement in illegal conduct or gross misconduct that is materially anddemonstrably injurious to the Company. For purposes of this Section 5(a), no act, or failure toact, shall be deemed “willful” unless the Executive’s commission of the act or failure to act isnot in good faith. In any event, the Company may not terminate the Executive for Cause unless anduntil the Company has delivered to the Executive a copy of a resolution duly adopted by theaffirmative vote of not less than three-quarters (3/4) of the entiremembership of the Board at a meeting of the Board (after reasonable notice to the Executive, anopportunity for the Executive, together with counsel, to be heard before the Board and a reasonableopportunity to cure), finding, in the Board’s good faith opinion, that the Executive engaged in anyof the conduct set forth above in clauses (i) through (iv) of the definition of “Cause” andspecifying in reasonable detail the particulars of the conduct at issue.          (b) Death. If the Executive is employed by the Company pursuant to this Agreement atthe time of the Executive’s death, then the Executive’s employment shall be terminatedautomatically concurrently with his death. In that event, the Company shall pay to the Executive’sestate, within sixty (60) days after the Company receives written notice of appointment of apersonal representative (on behalf of the Executive’s estate), the amount set forth in clauses (i)through (iii) of Section 6(a), plus all other amounts and benefits to which the Executive isentitled under any pension plan, retirement savings plan, equity participation plan, stock purchaseplan, medical benefits and other benefits of the Company or provided by law. The Company shall haveno further obligations to the Executive’s estate under this Agreement.          (c) Permanent Disability. If the Company terminates the Executive’s employment due tothe Executive’s Permanent Disability, the Company shall pay to the Executive base salary, inaccordance with the Company’s normal payroll practices, through the Date of Termination at the ratein effect at the time the Company gives the Executive Notice of Termination. The Company alsoshall pay to the Executive all other amounts and benefits to which the Executive is entitled underany pension plan, retirement savings plan, equity participation plan, stock purchase plan,long-term disability policy, medical benefits and other benefits of the Company or provided by law.Company shall have no further obligations to the Executive’s estate under this Agreement. Forpurposes of this Agreement, “**Permanent Disability**” means any incapacity due to physical or mentalillness as a result of which the Executive is absent from the full-time performance of his dutieswith the Company for six (6) consecutive months and does not return to the full-time performance ofhis duties within thirty (30) days after the Company gives Notice of Termination to the Executive.
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          (d) Termination Without Cause or For Good Reason. If the Company terminates theExecutive’s employment without Cause or the Executive terminates his employment for “Good Reason”(other than on account of death or Permanent Disability), the Executive shall be entitled to thecompensation, vesting and benefits as described in Section 6(b) below. For purposes of thisAgreement, “**Good Reason**” means the occurrence of any of the following events unless they are fullycorrected (provided such circumstances are capable of correction) prior to the Date of Termination:     (i) The Executive ceases to be an Officer of the Company reporting to anotherOfficer;     (ii) The Executive’s Base Salary is reduced by a greater percentage than thereduction applicable to any other Officer;     (iii) There is a reduction in the annual incentive compensation opportunity orEquity Compensation (as defined in Section 6(b)(iii)(A) below) opportunity (i.e.,percentage of the Executive’s base salary represented by awards of EquityCompensation of any type) established for the position held by the Executive and thereduction is not applied in the same or similar manner to all other executiveofficers;     (iv) There is a reduction or elimination of an executive benefit or an employeebenefit and the reduction is not applicable to all other Officers in the same orsimilar manner;     (v) There is a material breach of this Agreement by the Company and the Companydoes not remedy it prior to the expiration of thirty (30) days after receipt ofwritten notice of the breach given by the Executive to the Company;     (vi) The Company exercises its right not to extend the term of this Agreementbeyond the then current term, unless the Company concurrently exercises its rightnot to renew the employment agreements in effect with respect to the then-currentmembers of Group B (as defined below). “Group B” means the following individualsKenneth A. Boerger, Jonathan S. Freeman, Daniel P. Ibele, Susan Allene Kovach,Timothy T. Paige, Roberto Rubio Barnes and Scott M. Sellick. If the employment ofany individual listed in the preceding sentence is terminated by the Company forCause or by the individual without Good Reason, that individual shall no longer be amember of Group B. For purposes of this Section 5(d)(6), the term “employmentagreements” does not include the Letter Agreement (as defined in Section 12(n)) orsimilar agreements relating to a change in control of the Company.If the Executive does not deliver to the Chief Executive Officer, within ninety (90) days after thedate on which the Executive knew or should have known of the Good Reason event, written noticespecifying in reasonable detail the particulars giving rise to the Good Reason Event, the Executiveshall be deemed conclusively to have waived that particular Good Reason Event (but not anysubsequent Good Reason Event) even if the Executive’s failure to give timely notice of the GoodReason event is a result of the Executive’s incapacity due to physical or mental illness.
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          (e) Termination by Resignation or Retirement. If the Executive terminates hisemployment by resigning or retiring, other than at the written request of the Company or for GoodReason, the Company shall pay the Executive base salary through the Date of Termination at the ratein effect at the time the Notice of Termination is given. In addition, the Company shall pay orprovide to the Executive all other amounts and benefits to which the Executive is entitled underany compensation plan or practice of the Company, pension plan, retirement savings plan, equityparticipation plan, stock purchase plan, medical benefits and other benefits of the Company orprovided by law, at the time such payments are due. The Company shall have no further obligationsto the Executive under this Agreement.          (f) Notice of Termination. A party who purports to terminate the Executive’semployment (other than as a result of death or as a result of resignation or retirement that is notat the written request of the Company and is not for Good Reason) shall provide to the other partyNotice of Termination in accordance with Section 5. “**Notice of Termination**” means a written noticethat indicates the specific termination provision in this Agreement upon which the terminatingparty is relying and that sets forth in reasonable detail the facts and circumstances claimed toprovide a basis for termination of the Executive’s employment under the provision so indicated.          (g) Date of Termination, Etc. “**Date of Termination**” means the date on which theExecutive incurs a “separation from service” within the meaning of Section 409A of the InternalRevenue Code of 1986, as amended (the “**Code**”).     6. Compensation upon Termination.          (a) Death. If the Executive’s employment with the Company is terminated by reason ofthe Executive’s death, the Executive’s estate shall be entitled to the following:     (i) Payment of the Executive’s base salary accrued through the Date ofTermination;     (ii) Payment of the Executive’s incentive compensation under all plans ineffect at the Date of Termination paid at target but prorated over the period ofeach applicable plan through the Date of Termination;     (iii) One (1) times the sum of the Executive’s annual base salary at the thencurrent rate in effect as of the Date of Termination payable in one (1) lump-sumpayment;     (iv) Continuation of the Executive’s medical, prescription drug, dental andvision benefits (collectively, “**Medical Insurance Benefits**”) for the Executive’scovered dependents for a period of twelve (12) months following the Date ofTermination. On or about January 31 of the first full calendar year after the Dateof Termination, and on each anniversary thereof for each year during which theExecutive’s dependents are eligible for coverage pursuant to this Section 6(a)(iv),the Executive’s dependents shall pay the cost, on an after-tax basis, for thecontinued Medical Insurance Benefits, and concurrently therewith the Company willmake a payment to the Executive’s dependents such that, after payment of all taxesincurred by the Executive’s dependents as a result of their receipt of the MedicalInsurance Benefits and payment by the Company, the
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Executive’s dependents will retain an amount equal to the amount they paidduring the immediately preceding calendar year for the Medical Insurance Benefits;and     (v) Awards to the Executive pursuant to any Equity Compensation plan of theCompany shall vest immediately as of the Date of Termination and, if applicable, beexercisable for a period of three years following the Date of Termination or forsuch longer period following the Date of Termination specified by the award grantedto the Executive; provided however, that nothing in this Agreement shall act toextend the term of any Equity Compensation award and no Equity Compensation awardthat has an option feature (i.e., a feature that requires that the grantee take anaffirmative action to obtain the benefit of the award) may be exercised after theexpiration of the term of the award specified in the award granted to the Executive.          (b) Termination for Permanent Disability, Without Cause or for Good Reason. If theCompany terminates the Executive’s employment for Permanent Disability or without Cause, or theExecutive terminates his employment for Good Reason (other than as a result of the Executive’sdeath or Permanent Disability), the Executive shall be entitled to the following:     (i) Payment, not later than five (5) business days after the Date ofTermination, of the Executive’s base salary accrued through the Date of Termination;     (ii) With respect to the Executive’s annual incentive compensation opportunityduring the year in which the Date of Termination occurs, payment of an amount equalto the Executive’s target award, prorated through the Date of Termination; provided,however, that in any event the amount payable pursuant to this clause shall not beless than 50% of the Executive’s target award. The amount payable pursuant to thisclause shall be paid, subject to Section 6(c), between January 1 and March 15 of theyear following the year in which the Date of Termination occurs;     (iii) If the Executive is eligible under any “performance-based” equityCompensation plans (as defined below) as of the date on which Notice of Terminationis given, payment of the applicable Equity Compensation (or, in the CompensationCommittee’s discretion, cash equal in value to the applicable Equity Compensation)actually earned for each performance cycle during which the Date of Terminationoccurs, but prorated through the Date of Termination. The amount required to bepaid pursuant to this clause (iii) shall be paid, subject to Section 6(c), betweenJanuary 1 and March 15 of the year following the end of each applicable performancecycle. For purposes of this Agreement, the following terms have the meanings giventhem below:          (A) “Equity Compensation” means shares of common stock, whether or notrestricted, restricted stock units, performance shares, performance units, stockoptions, stock appreciation rights and/ or any other equity-based or equity-relatedaward.
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          (B) A compensation plan shall be deemed a “performance-based equitycompensation plan” if the plan provides that Equity Compensation may be earnedpursuant to the plan and the plan provides that the amount of, or the entitlementto, the Equity Compensation is contingent on the satisfaction of pre-establishedorganizational or individual performance criteria relating to a performance periodof at least twelve (12) consecutive months. Organizational or individual performancecriteria are considered pre-established if established in writing by the date notlater than ninety (90) days after the commencement of the performance period,provided that the outcome is substantially uncertain at the time the criteria areestablished. A performance-based equity compensation plan also may provide forpayments based upon subjective performance criteria, provided that—          (1) The subjective performance criteria are bona fide and relate to theperformance of the Executive, a group of employees that includes theExecutive, or a business unit for which the Executive provides services(which may include the entire Company); and          (2) The determination that any subjective performance criteria havebeen met is not made by the Executive or a family member of the Executive,or a person under the effective control of the Executive or such a familymember, and no amount of the compensation of the person making thedetermination is effectively controlled in whole or in part by the Executiveor such a family member;     (iv) A lump sum payment equal to two (2) times the sum of (A) Executive’sannual Base Compensation at the rate in effect on the date on which Notice ofTermination is given and (B) the Executive’s target annual incentive compensationopportunity at the time the Notice of Termination is given. The amount required tobe paid pursuant to this clause (iv) shall be paid, subject to Section 6(c), notlater than five (5) business days after the Date of Termination;     (v) Continuation of the Executive’s medical, prescription drug, dental and lifeinsurance benefits (collectively, “**Insurance Benefits**”) for a period of twenty-four(24) months following the Date of Termination. On or about January 31 of the firstfull calendar year after the Date of Termination, and on each anniversary thereoffor each year during which the Executive is eligible for coverage pursuant to thisSection 6(a)(v), Executive shall pay the cost, on an after-tax basis, for thecontinued Insurance Benefits, and concurrently therewith the Company will make apayment to the Executive such that, after payment of all taxes incurred by theExecutive as a result of his receipt of the Insurance Benefits and payment by theCompany, the Executive will retain an amount equal to the amount the Executive paidduring the immediately preceding calendar year for the Insurance Benefits; and     (vi) Any awards of Equity Compensation (other than “performance-based” EquityCompensation”) that have been granted to the Executive and that have not vested asof the Date of Termination shall vest immediately on the Date of Termination. Tothe extent that any such awards (such as stock options or stock appreciation rights)contain an option feature (i.e., a feature that requires
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that the grantee take an affirmative action in order to obtain the benefit ofthe award), they shall be exercisable for a period of three years following the Dateof Termination or for such longer period following the Date of Termination as isspecified in the award agreements governing the award(s). However, the immediatelypreceding sentence shall not be deemed to extend the term of any award of EquityCompensation that, by the terms of the agreement governing it, is scheduled toexpire unless exercised prior to the expiration of the three (3) year periodreferred to in the immediately preceding sentence.          (c) Payments. Payment of benefits under Section 6(a) is subject to reasonableevidence of authority to act for the decedent’s estate. Payment of benefits under clauses (ii),(iii), (iv), (v) and (vi) of Section 6(b) is conditioned on the release provided under Section 6(d)becoming effective. Except as otherwise provided in this Agreement, all payments under thisAgreement shall be subject to applicable withholdings. Notwithstanding any provisions of thisSection 6 to the contrary, if the Executive is a “specified employee” (within the meaning ofSection 409A of the Code and determined pursuant to policies adopted by the Company) on theExecutive’s Date of Termination, amounts that otherwise would be payable, pursuant to clauses (ii),(iii), (iv), (v) and (vi) of Section 6(b) of this Agreement (as well as any other payment orbenefit that the Executive is entitled to receive upon the Executive’s separation from service thatwould be considered to be deferred compensation under Section 409A of the Code), during the six (6)month period immediately following the Date of Termination (the “**Delayed Payments**”) will instead bepaid or made available on the earlier of (i) the first day of the seventh month following theExecutive’s Date of Termination and (ii) the Executive’s death (the applicable date, the “**InitialPayment Date**”). Continuation of benefits under Section 6(a)(iv) or 6(b)(vi), shall be in additionto and not concurrent with any continuation rights Executive may have under the ConsolidatedOmnibus Budget Reconciliation Act of 1985, or similar state law.          (d) Release. Payment of any amount to and the provision of any benefits to, or onbehalf of, the Executive pursuant to any of clauses (ii), (iii), (iv), (v) and (vi) of Section 6(b)of this Agreement and Executive’s acceptance of such amounts shall be conditioned on theExecutive’s execution and delivery to the Company, no later than sixty (60) days after the Date ofTermination, of a general waiver and release of claims in the form attached hereto as Exhibit A orin such other form as the Company may reasonably request to provide a complete release of allclaims and causes of action the Executive or the Executive’s estate may have against the Company,except claims and causes of action arising out of, or related to, the obligations of the Companypursuant to this Agreement and Claims (as defined in Exhibit A) for vested benefits under anypension plan, retirement plan and savings plan, rights under any Equity Compensation plan and stockpurchase plan and rights to continuation of medical care coverage pursuant to the ConsolidatedOmnibus Budget Reconciliation Act of 1985 and any similar state law.          (e) No Offset for Benefits. There shall be no offset to any compensation or otherbenefits otherwise payable to, or on behalf of, the Executive pursuant to the terms of Section 6 ofthis Agreement as a result of the receipt by Executive of any pension, retirement or other benefitpayments (including, but not limited to, accrued vacation) except as provided by Section 12(n).
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(f) Excise Tax.     (i) Anything in this Agreement to the contrary notwithstanding, if it shall bedetermined that any payment or distribution to the Executive or for the Executive’sbenefit (whether paid or payable or distributed or distributable) pursuant to theterms of this Agreement or otherwise (the “**Payment**”) would be subject to the excisetax imposed by section 4999 of the Code or any successor provision (the “**ExciseTax**”), then the Executive shall be entitled to receive from the Company anadditional payment (the “**Gross-Up Payment**”) in an amount such that the net amount ofthe Payment and the Gross-Up Payment retained by the Executive after the calculationand deduction of all Excise Taxes (including any interest or penalties imposed withrespect to such taxes) on the payment and all federal, state and local income tax,employment tax and Excise Tax (including any interest or penalties imposed withrespect to such taxes) on the Gross-Up Payment provided for in this Section 6(g),and taking into account any lost or reduced tax deductions on account of theGross-Up Payment, shall be equal to the Payment;     (ii) Notwithstanding any provision of this Agreement to the contrary, butgiving effect to any redetermination of the amount of Gross-Up payments otherwiserequired by this Section 6(f), if but for this sentence the Company would beobligated to make a Gross-Up Payment to the Executive, and the aggregate “presentvalue” of the “parachute payments” to be paid or provided to the Executive underthis Agreement or otherwise does not exceed 1.10 multiplied by three times theExecutive’s “base amount,” then the payments and benefits to be paid or providedunder this Agreement will be reduced (or repaid to the Company, if previously paidor provided) to the minimum extent necessary so that no portion of any payment orbenefit to the Executive, as so reduced or repaid, constitutes an “excess parachutepayment.” For purposes of this Section 6(f)(ii), the terms “excess parachutepayment,” “present value,” “parachute payment,” and “base amount” have the meaningsassigned to them by Section 280G of the Code. The determination of whether anyreduction in or repayment of such payments or benefits to be provided under thisAgreement is required pursuant to this Section 6(f)(ii) will be made at the expenseof the Company, if requested by the Executive or the Company, by the Accountants (asdefined in Section 6(f)(iii)). Appropriate adjustments will be made to amountspreviously paid to the Executive, or to amounts not paid pursuant to this Section6(f)(ii), as the case may be, to reflect properly a subsequent determination thatthe Executive owes more or less Excise Tax than the amount previously determined tobe due. If a Payment intended to be provided under the Agreement is required to bereduced pursuant to this Section 6(f)(ii), the payments shall be reduced in thefollowing order of priority: payments pursuant to Section 6(b)(iv), paymentspursuant to Section 6(b)(v) and payments pursuant to Section 6(b)(ii), with anyEquity Compensation having an option feature being the last payments to be subjectto reduction.     (iii) All determinations required to be made under this Section 6, includingwhether and when the Gross-Up Payment is required and the amount of such Gross-UpPayment, and the assumptions to be utilized in arriving at such determinations,shall be made in good faith by the Accountants (as defined
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below), which shall provide the Executive and the Company with detailedsupporting calculations with respect to such Gross-Up Payment within fifteen (15)business days of the receipt of notice from the Executive or the Company that hasreceived or will receive a Payment. For the purposes of this Section 6(f), the“**Accountants**” shall mean the Company’s independent certified public accountantsserving immediately prior to the change in control that with other events results inthe imposition of the Excise Tax. If the Accountants are also serving as accountantor auditor for the individual, entity or group effecting a change in control thatwith other events results in the imposition of the Excise Tax, the Company shallappoint another recognized public accounting firm to make the determinationsrequired hereunder (which accounting firm shall also be referred to herein as the“**Accountants**”). All fees and expenses of the Accountants shall be borne solely bythe Company. For the purposes of determining whether any of the Payments will besubject to the Excise Tax and the amount of such Excise Tax, such Payments will betreated as “parachute payments” within the meaning of section 280G of the Code, andall “parachute payments” in excess of the “base amount” (as defined under section280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless andexcept to the extent that in the opinion of the Accountants such Payments (in wholeor in part) either do not constitute “parachute payments” or represent reasonablecompensation for services actually rendered (within the meaning of section280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments”are otherwise not subject to such Excise Tax. For purposes of calculating whetherthe Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A)to the extent not otherwise specified herein, reasonable assumptions andapproximations may be made, (B) good faith interpretations of the Code may be reliedupon and (C) the Executive shall be deemed to pay Federal income taxes at thehighest applicable marginal rate of Federal income taxation for the calendar year inwhich the Gross-Up Payment is to be made, net of the maximum reduction in Federalincome taxes which could be obtained from the deduction of such state or local taxesif paid in such year (determined without regard to limitations on deductions basedupon the amount of the Executive’s adjusted gross income), and to have otherwiseallowable deductions for Federal, state and local income tax purposes at least equalto those disallowed because of the inclusion of the Gross-Up Payment in theExecutive’s adjusted gross income. Any determination by the Accountants shall bebinding upon the Company and the Executive. As a result of uncertainty in theapplication of section 4999 of the Code at the time of the initial determination bythe Accountants hereunder, it is possible that the Gross-Up Payment made will havebeen an amount less than the Company should have paid pursuant to this Section 6(f)(the “**Underpayment**”). If the Company exhausts its remedies pursuant to Section 6(f)and the Executive is required to make a payment of any Excise Tax, the Underpaymentshall be promptly paid by the Company to the Executive or for his benefit; and     (iv) The Executive shall notify the Company in writing of any claim by theInternal Revenue Service that, if successful, would require the payment by theCompany of the Gross-Up Payment. Such notification shall be given as soon aspracticable after the Executive is informed in writing of such claim and shallapprise the Company of the nature of such claim and the date on which such
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claim is requested to be paid. The Executive shall not pay such claim prior tothe expiration of the 30-day period following the date on which the Executive givessuch notice to the Company (or such shorter period ending on the date that anypayment of taxes, interest and/or penalties with respect to such claim is due). Ifthe Company notifies the Executive in writing prior to the expiration of such periodthat it desires to contest such claim, the Executive shall:          (A) give the Company any information reasonably requested by the Companyrelating to such claim;          (B) take such action in connection with contesting such claim as the Companyshall reasonably request in writing from time to time, including, withoutlimitation, accepting legal representation with respect to such claim by an attorneyreasonably selected by the Company;          (C) cooperate with the Company in good faith in order to effectively contestsuch claim; and          (D) permit the Company to participate in any proceedings relating to suchclaims; provided, however, that the Company shall bear and pay directly all costsand expenses (including additional interest and penalties) incurred in connectionwith such contest and shall indemnify the Executive for and hold the Executiveharmless from, on an after-tax basis, any Excise Tax or income tax (includinginterest and penalties with respect thereto) imposed as a result of suchrepresentation and payment of all related costs and expenses. Without limiting theforegoing provisions of this Section 6(f), the Company shall control all proceedingstaken in connection with such contest and, at its sole option, may pursue or forgoany and all administrative appeals, proceedings, hearings and conferences with thetaxing authority in respect of such claim and may, at its sole option, either directthe Executive to pay the tax claimed and sue for a refund or contest the claim inany permissible manner, and the Executive agrees to prosecute such contest to adetermination before any administrative tribunal, in a court of initial jurisdictionand in one or more appellate courts, as the Company shall determine; provided,however, that if the Company directs the Executive to pay such claim and sue for arefund, the Company shall advance the amount of such payment to the Executive, on aninterest-free basis, and shall indemnify the Executive for and hold the Executiveharmless from, on an after-tax basis, any Excise Tax or income tax (includinginterest or penalties with respect thereto) imposed with respect to such advance orwith respect to any imputed income with respect to such advance (including as aresult of any forgiveness by the Company of such advance); provided, further, thatany extension of the statute of limitations relating to the payment of taxes for thetaxable year of the Executive with respect to which such contested amount is claimedto be due is limited solely to such contested amount. Furthermore, the Company’scontrol of the contest shall be limited to issues with respect to which a Gross-UpPayment would be payable hereunder and the Executive shall be entitled to settle orcontest, as the case may be, any other issue raised by the Internal Revenue Serviceor any other taxing authority.
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     (v) Notwithstanding any other provision of this Section 6(f) to the contraryand subject to Section 6(c), all taxes and expenses described in this Section 6(f)shall be paid or reimbursed within five (5) business days after the Executivesubmits evidence of incurrence of such taxes and/or expenses, provided that in allevents such reimbursement will be made no later than the end of the year followingthe year in which the applicable taxes are remitted or, in the case of reimbursementof expenses incurred due to a tax audit or litigation to which there is noremittance of taxes, no later than the end of the year following the year in whichthe audit is completed or there is a final and nonappealable settlement or otherresolution of the litigation in accordance with Treasury Regulation Section1.409A-3(i)(1)(v). Each provision of reimbursements pursuant to this Section 6(f)shall be considered a separate payment and not one of a series of payments forpurposes of Section 409A. Any expense reimbursed by the Company in one taxable yearin no event will affect the amount of expenses required to be reimbursed or in-kindbenefits required to be provided by the Company in any other taxable year.     7. Termination Obligations.          (a) The Executive hereby acknowledges and agrees that all personal property and equipmentfurnished to or prepared by the Executive in the course of or incident to the Executive’semployment by the Company belongs to the Company and shall be promptly returned to the Company upontermination of the employment. “**Personal property**” includes, without limitation, all books,manuals, records, reports, notes, contracts, lists, blueprints, and other documents, or materials,or copies thereof (including computer files), and all other proprietary information relating to thebusiness of the Company or any affiliate. Following termination of employment, the Executive willnot retain any written or other tangible material containing any proprietary information orConfidential Information (as defined below) of the Company or any affiliate of the Company.          (b) Upon termination of the employment, the Executive shall be deemed to have resigned fromall offices and directorships then held with the Company or any affiliate of the Company.          (c) The representations and warranties contained herein and the Executive’s obligations and/oragreements under Sections 7, 8, 9, 20, 11 and 12 hereof shall survive termination of the employmentand the expiration of this Agreement.          (d) Any reference to the Company in this Section 7 shall include the Company and any entitythat owns, is owned by or is under common ownership with the Company (an “**Affiliate**”).     8. Records and Confidential Data.          (a) The Executive acknowledges that in connection with the performance of his duties duringthe term of this Agreement, the Company will make available to the Executive, or the Executive willhave access to, certain Confidential Information (as defined below) of the Company. The Executiveacknowledges and agrees that any and all Confidential Information learned or obtained by theExecutive during the course of his employment by the Company or otherwise (including, withoutlimitation, information that the Executive obtained through or in
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connection with the Executive’s stock ownership in and employment by the Company prior to thedate hereof) whether developed by the Executive alone or in conjunction with others or otherwise,shall be and is the property of the Company.          (b) The Executive shall keep all Confidential Information confidential and will not use suchConfidential Information other than in connection with the Executive’s discharge of his dutieshereunder. The Executive will safeguard the Confidential Information from unauthorized disclosure.This covenant is not intended to, and does not limit in any way, any of the Executive’s duties orobligations to the Company under statutory or common law not to disclose or to make personal use ofthe Confidential Information or trade secrets.          (c) Following the Executive’s termination hereunder, as soon as possible after the Company’swritten request, the Executive will return to the Company all written Confidential Information thathas been provided to the Executive, and the Executive will destroy all copies of any analyses,compilations, studies or other documents prepared by the Executive or for the Executive’s usecontaining or reflecting any Confidential Information. Within ten (10) business days of thereceipt of such request by the Executive, the Executive shall, upon written request of the Company,deliver to the Company a notarized document certifying that such written Confidential Informationhas been returned or destroyed in accordance with this Section 8(c).          (d) For the purposes of this Agreement, “**Confidential Information**” shall mean all confidentialand proprietary information of the Company, including, without limitation, the Company’s marketingstrategies, pricing policies or characteristics, customers and customer information, product orproduct specifications, designs, software systems, cost of equipment, customer lists, business orbusiness prospects, plans, proposals, codes, marketing studies, research, reports, investigations,public relations methods, or other information of similar character. For purposes of thisAgreement, the Confidential Information shall not include and the Executive’s obligations underthis Section 8 shall not extend to (i) information which is available in the public domain, (ii)information obtained by the Executive from third persons (other than employees of the Company orits affiliates) not under agreement to maintain the confidentiality of the same and (iii)information that is required to be disclosed by law or legal process.          (e) Any reference to the Company in this Section 8 shall include the Company and itsAffiliates.     9. Assignment of Inventions.          (a) Definition of Inventions. “**Inventions**” mean discoveries, developments concepts,ideas, methods, designs, improvements, inventions, formulas, processes, techniques, programs,know-how and data, whether or not patentable or registerable under copyright or similar statutes,except any of the foregoing that (i) is not related to the business of the Company or the Company’sactual or demonstrable research or development, (ii) does not involve the use of any equipment,supplies, facility or Confidential Information of the Company, (iii) was developed entirely on theExecutive’s own time, and (iv) does not result from any work performed by the Executive for theCompany.
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          (b) Assignment. The Executive agrees to and hereby does assign to the Company, withoutfurther consideration, all of his right, title and interest in any and all Inventions the Executivemay make during the term hereof.          (c) Duty to Disclose and Assist. The Executive agrees to promptly disclose in writingall Inventions to the Company, and to provide all assistance reasonably requested by the Company inthe preservation of the Company’s interests in the Inventions including obtaining patents in anycountry throughout the world. Such services will be without additional compensation if theExecutive is then employed by the Company and for reasonable compensation and subject to hisreasonable availability if he is not. If the Company cannot, after reasonable effort, secure theExecutive’s signature on any document or documents needed to apply for or prosecute any patent,copyright, or other right or protection relating to an Invention, whether because of his physicalor mental incapacity or for any other reason whatsoever, the Executive hereby irrevocablydesignates and appoints the Company and its duly authorized Officers and agents as his agent andattorney-in-fact, to act for and on his behalf and in his name and stead for the purpose ofexecuting and filing any such application or applications and taking all other lawfully permittedactions to further the prosecution and issuance of patents, copyrights, or similar protectionsthereon, with the same legal force and effect as if executed by the Executive.          (d) Ownership of Copyrights. The Executive agrees that any work prepared for theCompany which is eligible for United States copyright protection or protection under the UniversalCopyright Convention or other such laws or protections including, but not limited to, the BerneCopyright Convention and/or the Buenos Aires Copyright Convention shall be a work made for hire andownership of all copyrights (including all renewals and extensions) therein shall vest in theCompany. If any such work is deemed not to be a work made for hire for any reason, the Executivehereby grants, transfers and assigns all right, title and interest in such work and all copyrightsin such work and all renewals and extensions thereof to the Company, and agrees to provide allassistance reasonably requested by the Company in the establishment, preservation and enforcementof the Company’s copyright in such work, such assistance to be provided at the Company’s expensebut without any additional compensation to the Executive. The Executive hereby agrees to and doeshereby waive the enforcement of all moral rights with respect to the work developed or producedhereunder, including without limitation any and all rights of identification of authorship and anyand all rights of approval, restriction or limitation on use or subsequent modifications.          (e) Litigation. The Executive agrees to render assistance and cooperation to theCompany at its request regarding any matter, dispute or controversy with which the Company maybecome involved and of which the Executive has or may have reason to have knowledge, information orexpertise. Such services will be without additional compensation if the Executive is then employedby the Company and for reasonable compensation and subject to his reasonable availability if he isnot.          (f) Construction. Any reference to the Company in this Section 9 shall include theCompany and its Affiliates.     10. Additional Covenants.          (a) Non-Interference with Customer Accounts. Executive covenants and agrees that (i)during employment and (ii) for a period of twelve (12) months commencing on the
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Date of Termination, except as may be required by Executive’s employment by the Company,Executive shall not directly or indirectly, personally or on behalf of any other person, business,corporation, or entity, contact or do business with any customer of the Company with respect to anyproduct, business activity or service which is competitive with any product, business, activity orservice of the type sold or provided by the Company.          (b) Non-Competition. In consideration of and in connection with the benefits providedto the Executive under this Agreement and in order to protect the goodwill of the Company, theExecutive hereby agrees that if the Executive’s employment is terminated, then, unless the Companyotherwise agrees in writing, for a period of twelve (12) months commencing on the Date ofTermination, the Executive shall not, directly or indirectly, own, manage, operate, join, controlor participate in the ownership, management, operation or control of, or be connected as adirector, officer, employee, partner, consultant or otherwise with any entity engaged in a businesswhich sells, in competition with the Company and its affiliates, the same type of products as soldby the Company, including without limitation glass tableware, ceramic dinnerware, metal flatwareand plastic supplies to the foodservice industry other than as a shareholder or beneficial ownerowning five percent (5%) or less of the outstanding securities of a public company. Withoutlimiting the foregoing, currently the following business operations among others sell, incompetition with the Company and its affiliates, the same type of products as sold by the Companyand its affiliates: Anchor Hocking; Arc International and its affiliate Cardinal International,Inc.; Oneida Ltd.; and any glass tableware manufacturer, seller or importer for Bormioli Rocco CasaSpA, for the Kedaung group of companies of Indonesia or for the Sisecam group of companies ofTurkey including Pasabahce.          (c) No Diversion. The Executive covenants and agrees that in addition to the otherCovenants set forth in this Section 10, (i) during his employment and (ii) for a period of twelve(12) months following his Date of Termination, Executive shall not divert or attempt to divert ortake advantage of or attempt to take advantage of any actual or potential business opportunities ofthe Company (e.g., joint ventures, other business combinations, investment opportunities, potentialinvestors in the Company, and other similar opportunities) of which the Executive became aware as aresult of his employment with the Company.          (d) Non-Recruitment. The Executive acknowledges that the Company has investedsubstantial time and effort in assembling its present workforce. Accordingly, the Executivecovenants and agrees that during employment and for period of twelve (12) months commencing on theDate of Termination, the Executive shall not either for the Executive’s own account or jointly withor as a manager, agent, officer, employee, consultant, partner, joint venture owner or shareholderor otherwise on behalf of any other person, firm or corporation directly or indirectly entice,solicit, attempt to solicit, or seek to induce or influence any Officer or employee of the Companyto leave his or her employment with the Company or to offer employment to any person who on orduring the six (6) month period immediately preceding the date of such solicitation or offer was anemployee of the Company; provided, however, that this Section 10(d) shall not be deemed to bebreached with respect to an employee or former employee of the Company who responds to a generaladvertisement seeking employment or who otherwise initiates contact for the purpose of seekingemployment.          (e) Non-Disparagement. Executive covenants and agrees that during the Executive’semployment and for period of twelve (12) months commencing on the Date of Termination, Executiveshall not induce or incite claims of discrimination, wrongful discharge, orany other claims against the Company or any of its directors, Officers, employees or equity
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holders, by any other persons, executives or entities, and the Executive shall not undertake anyharassing or disparaging conduct directed at the Company or any of its directors, Officers,employees or equity holders, other than such statements made as part of testimony compelled by lawor legal process.          (f) Remedies. The Executive acknowledges that should the Executive violate any of thecovenants contained in Sections 7, 8, 9 or 10 hereof (collectively, the “**Covenants**”), it would bedifficult to determine the resulting damages to the Company and, in addition to any other remediesit may have, the Company shall be entitled to (i) temporary injunctive relief without beingrequired to post a bond, (ii) permanent injunctive relief without the necessity of proving actualdamage and (iii) forfeiture of all benefits otherwise payable to or for the account of theExecutive under Sections 6(b)(ii), (iii), (iv) and (v) following the violation. The Executive shallbe liable to pay all costs including reasonable attorneys’ fees which the Company may incur inenforcing or defending, to any extent, these Covenants, whether or not litigation is actuallycommenced and including litigation of any appeal taken or defended by the Company, where theCompany succeeds in enforcing any part of these Covenants. The Company may elect to seek one ormore of these remedies at its sole discretion on a case by case basis. Failure to seek any or allremedies in one case does not restrict the Company from seeking any remedies in another situation.Such action by the Company shall not constitute a waiver of any of its rights.          (g) Severability and Modification of any Unenforceable Covenant. It is the parties’intent that each of the Covenants be read and interpreted with every reasonable inference given toits enforceability. However, it is also the parties’ intent that if any term, provision orcondition of the Covenants is held to be invalid, void or unenforceable, the remainder of theprovisions thereof shall remain in full force and effect and shall in no way be affected, impairedor invalidated. Finally, it is also the parties’ intent that if it is determined any of theCovenants are unenforceable because of over breadth, then the covenants shall be modified so as tomake it reasonable and enforceable under the prevailing circumstances.          (h) Tolling. If the Executive breaches any Covenant, the running of the period ofrestriction shall be automatically tolled and suspended for the amount of time that the breachcontinues, and shall automatically recommence when the breach is remedied so that the Company shallreceive the benefit of the Executive’s compliance with the Covenants. This paragraph shall notapply to any period for which the Company is awarded and receives actual monetary damages forbreach by the Executive of a Covenant with respect to which this paragraph applies.          (i) Construction. Any reference to the Company in this Section 10 shall include theCompany and its affiliates.     11. No Assignment. This Agreement and the rights and duties hereunder are personal tothe Executive and shall not be assigned, delegated, transferred, pledged or sold by the Executivewithout the prior written consent of the Company. The Executive hereby acknowledges and agreesthat the Company may assign, delegate, transfer, pledge or sell this Agreement and the rights andduties hereunder (a) to an affiliate of the Company or (b) to any third party in connection with(i) the sale of all or substantially all of the assets of the Company or (ii) a stock purchase,merger, or consolidation involving the Company. This Agreement shallinure to the benefit of and be enforceable by the parties hereto, and their respective heirs,personal representatives, successors and assigns.
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     12. Miscellaneous Provisions.          (a) Payment of Taxes. Except as specifically provided for in this Agreement, to theextent that any taxes become payable by the Executive by virtue of any payments made or benefitsconferred by the Company, the Company shall not be liable to pay or obligated to reimburse theExecutive for any such taxes or to make any adjustment under this Agreement. Any paymentsotherwise due under this Agreement to the Executive, including, but not limited to, the base salaryand any bonus compensation shall be reduced by any required withholding for federal, state and/orlocal taxes and other appropriate payroll deductions.          (b) Notices. All notices and other communications required or permitted to be givenpursuant to this Agreement shall be in writing and shall be considered as properly given or made(i) if delivered personally or (ii) after the expiration of five days from the date upon which suchnotice was mailed from within the United States by certified mail, return receipt requested,postage prepaid, (iii) upon receipt by prepaid telegram or facsimile transmission (with writtenconfirmation of receipt) or (iv) after the expiration of the second business day following depositwith an overnight delivery service. All notices given or made pursuant hereto shall be so given ormade to the parties at the following addresses:If to the Executive:Roberto Rubio Barnes