exv10w6






EXHIBIT 10.6




SUPERVALU INC.

LONG-TERM INCENTIVE PROGRAM

FOR THE [                    ] PERFORMANCE CYCLE

UNDER THE 2007 STOCK PLAN

PERFORMANCE STOCK UNIT AWARD

AGREEMENT (COMMON STOCK SETTLED)




     This agreement is made and entered into as of the grant date indicated below (the “Grant
Date”), by and between SUPERVALU INC. (the “Company”), and the individual whose name appears below
(“Recipient”).



     The Company has established the Long-Term Incentive Program for the [                    ] Performance Cycle
under the 2007 Stock Plan (the “Plan”), under which key employees of the Company may be granted
Awards of Performance Stock Units of the Company. Recipient has been selected by the Company to
receive an Award of Performance Stock Units subject to the provisions of this agreement.
Capitalized terms that are used in this agreement, that are not defined, shall have the meanings
ascribed to them in the Plan.



     In consideration of the foregoing, the Company and Recipient hereby agree as follows:



     1. Grant. The Company hereby grants to Recipient, subject to Recipient’s acceptance
hereof, an Award of Performance Stock Units for the number of Performance Stock Units indicated
below, effective as of the Grant Date.



     2. Acceptance of Award of Performance Stock Units and Performance Stock Unit Award Terms
and Conditions. The Award of Performance Stock Units is subject to and governed by the
Performance Stock Unit Award Terms and Conditions (“Terms and Conditions”) attached hereto, which
is incorporated herein and made a part hereof, and the terms and provisions of the Plan. To accept
the Award of Performance Stock Units, this agreement must be delivered and accepted through an
electronic medium in accordance with procedures established by the Company or Recipient must sign
and return a copy of this agreement to the Company. By so doing, Recipient acknowledges receipt of
the accompanying Terms and Conditions and the Plan, and represents that Recipient has read and
understands the same and agrees to be bound by the accompanying Terms and Conditions and the terms
and provisions of the Plan. In the event that any provision of this agreement or the accompanying
Terms and Conditions is inconsistent with the terms and provisions of the Plan, the terms and
provisions of the Plan shall govern. Any question of administration or interpretation arising
under this agreement or the accompanying Terms and Conditions shall be determined by the Committee
administering the Plan, and such determination shall be final, conclusive and binding upon all
parties in interest.



     3. Earning and Vesting of Performance Stock Units. Subject to the accompanying Terms
and Conditions, the number of Performance Stock Units that shall be earned by Recipient under the
Award of Performance Stock Units shall be determined in [Month/Year] in accordance with Exhibit
A attached hereto, which is incorporated herein and made a part hereof. All such Performance
Stock Units shall vest upon earning. Upon the earning and vesting of the Performance Stock Units,
Recipient shall receive a grant of Common Stock, as more particularly described in the accompanying
Terms and Conditions.



     Grant Date:



     Number of Performance Stock Units Awarded:



	 	 	 	 	 
	SUPERVALU INC. 

 	 	RECIPIENT: 
	By:  	 	 	 
	 	David E. Pylipow 	 	 
	 	Executive Vice President, Human Resources


and Communications                                	 	SS#




 









 








SUPERVALU INC.

LONG-TERM INCENTIVE PROGRAM

FOR THE [                    ] PERFORMANCE CYCLE

UNDER THE 2007 STOCK PLAN

PERFORMANCE STOCK UNIT AWARD

TERMS AND CONDITIONS (STOCK SETTLED)



These Performance Stock Unit Award Terms and Conditions (“Terms and Conditions”) apply to the Award
of Performance Stock Units granted pursuant to the Long-Term
Incentive Program for the [___] Performance Cycle under the 2007 Stock Plan (the “Plan”), pursuant to the Performance Stock Unit
Award Agreement (the “Agreement”) to which this document is attached. Capitalized terms that are
used in this document, but are not defined, shall have the meanings ascribed to them in the Plan or
the attached Agreement. See Section 19 for a list of defined terms.



1. Award of Performance Stock Units. SUPERVALU INC. (the “Company”) hereby grants to you an Award
of Performance Stock Units for the number of Performance Stock Units set forth in the attached
Agreement. The Award is effective as of the Grant Date. Each Performance Stock Unit represents
the right to receive a grant of Shares of the Company’s common stock, $1.00 par value (the “Common
Stock”), equal to the number of Performance Stock Units that you earn in accordance with Section 3,
Section 4 or Section 5 hereof, subject to these Terms and Conditions.



2. Rights with Respect to the Performance Stock Units. The Performance Stock Units granted
pursuant to the attached Agreement do not and shall not give you any of the rights and privileges
of a holder of Common Stock. Your rights with respect to the Performance Stock Units shall remain
forfeitable at all times prior to the date on which such rights become earned and vested and the
restrictions with respect thereto lapse in accordance with Section 3 or Section 4 hereof.



3. Earning and Vesting of Performance Stock Units. The number of the Performance Stock Units that
you earn shall be determined in April [                    ] by the Committee administering the Plan as more
particularly described in Exhibit A to the attached Agreement or as otherwise expressly
provided in these Terms and Conditions. All such Performance Stock Units shall vest upon earning.



4. Change in Control.





	 	a)	 	If, within two (2) years after a Change in Control you experience an involuntary
termination of employment initiated by the Company for reasons other than Cause, or a
termination of employment for Good Reason, then you shall become immediately and
unconditionally vested in all the Performance Stock Units and the restrictions with respect
to all the Performance Stock Units shall lapse and the Performance Stock Units shall be
settled and paid to you as soon as administratively feasible following your termination of
employment but in no event later than March 15 of the year following the year of your
termination of employment. If the Award of Performance Stock Units is replaced pursuant to
subsection (c) below, the protections and rights granted under this subsection (a) shall
transfer and apply to such replacement grant.
	 
	 	b)	 	If, in the event of a Change in Control, and to the extent the Award of Performance
Stock Units is not assumed by a successor corporation (or affiliate thereto) or other
successor entity or person, or replaced with an award or grant that, solely in the
discretionary judgment of the Committee preserves the existing value of the Award of
Performance Stock Units at the time of the Change in Control, then you shall become
immediately and unconditionally vested in all the Performance Stock Units and the
restrictions with respect to all the Performance Stock Units shall lapse and the
Performance Stock Units shall be settled and paid to you as soon as administratively
feasible after the Change in Control but in no event later than March 15 of the year
following the year of the Change in Control.
	 
	 	c)	 	If in the event of a Change in Control and to the extent that this Award of Performance
Stock Units is assumed by any successor corporation, affiliate thereof, person or other
entity, or are replaced with awards that, solely in the discretionary judgment of the
Committee preserve the existing value of this Award of Performance Stock Units at the time
of the Change in Control and provide for vesting, settlement terms and performance goals
that are at least as favorable to you as the vesting and payout terms applicable to this
Award of Performance Stock Units, then the




 









 






	 	 	 	assumed Award of Performance Stock Units or such substitute therefor shall remain
outstanding and be governed by its respective terms. 




5. Forfeiture. If you cease to be an employee of the Company or any of its Affiliates prior to
the earning and vesting of the Performance Stock Units pursuant to Section 3 or Section 4 hereof
for any reason, then your rights to all of the Performance Stock Units shall be immediately and
irrevocably forfeited. However, the Committee administering the Plan may determine to accelerate
the earning and vesting of the Performance Stock Units if you cease to be an employee of the
Company or any of its Affiliates prior to the earning and vesting of the Performance Stock Units
pursuant to Section 3 or Section 4 hereof for any reason.



6. Restrictions on Transfer. Except as may otherwise be determined by the Committee administering
the Plan, none of the Performance Stock Units may be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of or encumbered by you, and no attempt to transfer the
Performance Stock Units, whether voluntary or involuntary, by operation of law or otherwise, shall
vest the transferee with any interest or right in or with respect to the Performance Stock Units.



7. Issuance. No shares of Common Stock shall be issued to you prior to the date on which the
applicable Performance Stock Units vest, in accordance with these Terms and Conditions and the
attached Agreement. Furthermore, in no event shall any shares of Common Stock be issued to you
later than sixty (60) calendar days after the applicable Performance Stock Units vested. After any
Performance Stock Units vest pursuant to Section 3 or Section 4 hereof, and following payment of
the applicable withholding taxes pursuant to Section 8 hereof, the Company shall promptly cause one
share of Common Stock for each such vested Performance Stock Unit (less any shares of Common Stock
withheld to pay taxes), free of any restrictions, to be delivered, either by book-entry
registration or in the form of a certificate or certificates, registered in your name or in the
names of your legal representatives, beneficiaries or heirs, as the case may be, to you. Only
whole shares of Common Stock shall be issued to you pursuant to a certificate.



8. Taxes.





	 	a)	 	You acknowledge that you will consult with your personal tax advisor regarding the
income tax consequences of the grant of the Performance Stock Units, the earning and
vesting of the Performance Stock Units, the grant of Common Stock, and any other matters
related to these Terms and Conditions and the attached Agreement. In order to comply with
all applicable federal or state income, social security, payroll, withholding or other tax
laws or regulations, the Company may take such action, and may require you to take such
action, as it deems appropriate to ensure that all applicable federal or state income,
social security, payroll, withholding or other taxes, which are your sole and absolute
responsibility, are withheld or collected from you.
	 
	 	b)	 	You acknowledge that you are responsible for the payment of any federal, state, local
or other taxes that are required to be withheld by the Company upon vesting of the
Performance Stock Units. In order to satisfy any applicable federal, state, local or other
taxes that are required to be withheld, the Company shall withhold a portion of the shares
of Common Stock otherwise to be issued upon vesting of the Performance Stock Units having a
Fair Market Value as of the vesting date equal to the amount of federal and state income
tax required to be withheld upon such vesting (commonly referred to as a “Tax Swap” or
“Stock for Tax”).




9. Adjustments. If any Performance Stock Units are earned and vest subsequent to any change in
the number or character of the Common Stock through any recapitalization, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of shares or other securities of the Company, issuance of warrants or
other rights to purchase shares or other securities of the Company or other similar corporate
transaction or event that affects the Performance Stock Units covered by this Award of
Performance Stock Units, you shall then receive upon such earning and vesting of the
Performance Stock Units, the number and type of securities or other consideration which you
would have received if such Performance Stock Units had been earned and vested prior to the
event changing the number or character of the outstanding Common Stock.



10. Covenants. In consideration of benefits described elsewhere in these Terms and Conditions and
the attached Agreement, and in recognition of the fact that, as a result of your employment with
the Company or any of its Affiliates, you have had or will have access to and gain knowledge of
highly confidential or





 









 







proprietary information or trade secrets pertaining to the Company or its Affiliates, as well as
the customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and
entities with whom the Company or any of its Affiliates does business (“Confidential Information”),
which the Company or its Affiliates have expended time, resources, and money to obtain or develop
and which have significant value to the Company and its Affiliates, you agree for the benefit of
the Company and its Affiliates, and as a material condition to your receipt of benefits described
elsewhere in these Terms and Conditions and the attached Agreement, as follows:





	 	a)	 	Non-Disclosure of Confidential Information. You acknowledge that you will
receive access or have received access to Confidential Information about the Company or its
Affiliates, that this information was obtained or developed by the Company or its
Affiliates at great expense and is zealously guarded by the Company and its Affiliates from
unauthorized disclosure, and that your possession of this special knowledge is due solely
to your employment with the Company or one or more of its Affiliates. In recognition of
the foregoing, you will not at any time during employment or following termination of
employment for any reason, disclose, use or otherwise make available to any third party,
any Confidential Information relating to the Company’s or any Affiliate’s business,
products, services, customers, vendors or suppliers; trade secrets, data, specifications,
developments, inventions and research activity; marketing and sales strategies, information
and techniques; long and short term plans; existing and prospective client, vendor,
supplier and employee lists, contacts and information; financial, personnel and information
system information and applications; and any other information concerning the business of
the Company or its Affiliates which is not disclosed to the general public or known in the
industry, except for disclosure necessary in the course of your duties or with the express
written consent of the Company. All Confidential Information, including all copies, notes
regarding and replications of such Confidential Information will remain the sole property
of the Company or its Affiliates, as applicable, and must be returned to the Company or
such Affiliates immediately upon termination of your employment.
	 
	 	b)	 	Return of Property. Upon termination of employment with the Company or any of
its Affiliates, or at any other time at the request of the Company, you shall deliver to a
designated Company representative all records, documents, hardware, software and all other
property of the Company or its Affiliates and all copies of such property in your
possession. You acknowledge and agree that all such materials are the sole property of the
Company or its Affiliates and that you will certify in writing to the Company at the time
of delivery, whether upon termination or otherwise, that you have complied with this
obligation.
	 
	 	c)	 	Non-Solicitation of Existing or Prospective Customers, Vendors and Suppliers.
You specifically acknowledge that the Confidential Information described in Section 10(a)
includes confidential data pertaining to existing and prospective customers, vendors and
suppliers of the Company or its Affiliates; that such data is a valuable and unique asset
of the business of the Company or its Affiliates; and that the success or failure of their
businesses depends upon their ability to establish and maintain close and continuing
personal contacts and working relationships with such existing and prospective customers,
vendors and suppliers and to develop proposals which are specific to such existing and
prospective customers, vendors and suppliers. Therefore, during your employment with the
Company or any of its Affiliates and for the twelve (12) months following termination of
employment for any reason, you agree that you will not, except on behalf of the Company or
its Affiliates, or with the Company’s express written consent, solicit, approach, contact
or attempt to solicit, approach or contact, either directly or indirectly, on your own
behalf or on behalf of any other person or entity, any existing or prospective customers,
vendors or suppliers of the Company or its Affiliates with whom you had contact or about
whom you gained Confidential Information during your employment with the Company or its
Affiliates for the purpose of obtaining business or engaging in any commercial relationship
that would be competitive with the “Business of the Company” (as defined below in Section
10(e)(i)) or cause such customer, supplier or vendor to materially change or terminate its
business or commercial relationship with the Company or its Affiliates.
	 
	 	d)	 	Non-Solicitation of Employees. You specifically acknowledge that the
Confidential Information described in Section 10(a) also includes confidential data
pertaining to employees and agents of the Company or its Affiliates, and you further agree
that during your employment with the Company or its Affiliates and for the twelve (12)
months following termination of employment for any reason, you will not, directly or
indirectly, on your own behalf or on behalf of any other person




 









 






	 	 	 	or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact,
approach, encourage, or induce any of the employees or agents of the Company or its
Affiliates to terminate their employment or agency with the Company or any of its
Affiliates.
	 
	 	e)	 	Non-Competition. You covenant and agree that during your employment with the
Company or any of its Affiliates and for the twelve (12) months following termination of
employment for any reason, you will not, in any geographic market in which you worked on
behalf of the Company or any of its Affiliates, or for which you had any sales, marketing,
operational, logistical or other management or oversight responsibility, engage in or carry
on, directly or indirectly, as an owner, employee, agent, associate, consultant, partner or
in any other capacity, a business competitive with the Business of the Company. This
Section 10(e) shall not apply in the event of a Change in Control as described in Section 4
above.






	 	i)	 	The “Business of the Company” shall mean any business or activity involved in
grocery or general merchandise retailing and supply chain logistics, including but not
limited to grocery distribution, business-to-business portal, retail support services
and third-party logistics, of the type provided by the Company or its Affiliates, or
presented in concept to you by the Company or its Affiliates at any time during your
employment with the Company or any of its Affiliates.
	 
	 	ii)	 	To “engage in or carry on” shall mean to have ownership in such business
(excluding ownership of up to one percent (1%) of the outstanding shares of a
publicly-traded company) or to consult, work in, direct or have responsibility for any
area of such business, including but not limited to operations, logistics, sales,
marketing, finance, recruiting, sourcing, purchasing, information technology or
customer service.






	 	f)	 	No Disparaging Statements. You agree that you will not make any disparaging
statements about the Company, its Affiliates, directors, officers, agents, employees,
products, pricing policies or services.
	 
	 	g)	 	Remedies for Breach of These Covenants. Any breach of the covenants in this
Section 10 likely will cause irreparable harm to the Company or its Affiliates for which
money damages could not reasonably or adequately compensate the Company or its Affiliates.
Accordingly, the Company or any of its Affiliates shall be entitled to all forms of
injunctive relief (whether temporary, emergency, preliminary, prospective or permanent) to
enforce such covenants, in addition to damages and other available remedies, and you
consent to the issuance of such an injunction without the necessity of the Company or any
such Affiliate posting a bond or, if a court requires a bond to be posted, with a bond of
no greater than $500 in principal amount. In the event that injunctive relief or damages
are awarded to Company or any of its Affiliates for any breach by you of this Section 10,
you further agree that the Company or such Affiliate shall be entitled to recover its costs
and attorneys’ fees necessary to obtain such recovery. In addition, you agree that upon
your breach of any covenant in this Section 10, this Award of Performance Stock Units shall
be immediately and irrevocably forfeited.
	 
	 	h)	 	Enforceability of These Covenants. It is further agreed and understood by you
and the Company that if any part, term or provision of these Terms and Conditions and the
attached Agreement should be held to be unenforceable, invalid or illegal under any
applicable law or rule, the offending term or provision shall be applied to the fullest
extent enforceable, valid or lawful under such law or rule, or, if that is not possible,
the offending term or provision shall be struck and the remaining provisions of these Terms
and Conditions and the attached Agreement shall not be affected or impaired in any way.




11. Arbitration. You and the Company agree that any controversy, claim or dispute arising out of
or relating to the attached Agreement or the breach of any of these Terms and Conditions, or
arising out of or relating to your employment relationship with the Company or any of its
Affiliates, or the termination of such relationship, shall be resolved by final and binding
arbitration under the Employment Arbitration Rules and Mediation Procedures of the American
Arbitration Association, or other neutral arbitrator and rules as mutually agreed to you and the
Company, except for claims by the Company relating to your alleged breach of any of the employee
covenants set forth in Section 10 above. This agreement to arbitrate specifically includes, but is
not limited to, discrimination claims under Title VII of the Civil Rights Act of 1964 and under
state and local laws prohibiting employment discrimination. Nothing in this Section





 









 







11 shall preclude the Company from pursuing a court action to obtain a temporary restraining order
or a preliminary injunction relating to the alleged breach of any of the covenants set forth in
Section 10. The agreement to arbitrate shall continue in full force and effect despite the
forfeiture of this Award of Performance Stock Units or the termination of your employment
relationship with the Company or any of its Affiliates. You and the Company agree that any award
rendered by the arbitrator must be in writing and include the findings of fact and conclusions of
law upon which it is based, shall be final and binding, and that judgment upon the final award may
be entered in any court having jurisdiction thereof. The arbitrator may grant any remedy or relief
that the arbitrator deems just and equitable, including any remedy or relief that would have been
available to you or the Company or any of its Affiliates had the matter been heard in court. All
expenses of arbitration, including the required travel and other expenses of the arbitrator and any
witnesses, and the costs relating to any proof produced at the direction of the arbitrator, shall
be borne equally by you and the Company unless otherwise mutually agreed or unless the arbitrator
directs otherwise in the award. The arbitrator’s compensation shall be borne equally by you and
the Company unless otherwise mutually agreed or the law provides otherwise.



12. Severability. In the event that any portion of these Terms and Conditions and the attached
Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the
validity and enforceability of the remainder of these Terms and Conditions and the attached
Agreement.



13. Interpretations. These Terms and Conditions and the attached Agreement are subject in all
respects to the Plan. A copy of the Plan is available upon your request. In the event that any
provision of these Terms and Conditions or the attached Agreement is inconsistent with the terms of
the Plan, the terms and provisions of the Plan shall govern. Any question of administration or
interpretation arising under these Terms and Conditions or the attached Agreement shall be
determined by the Committee administering the Plan, and such determination shall be final,
conclusive and binding upon all parties in interest.



14. No Right to Employment. Nothing in these Terms and Conditions, the attached Agreement or the
Plan shall be construed as giving you the right to be retained as an employee of the Company. In
addition, the Company may at any time dismiss you from employment, free from any liability or any
claim under these Terms and Conditions and the attached Agreement, unless otherwise expressly
provided in these Terms and Conditions and the attached Agreement.



15. Compensation. Any compensation realized from the receipt or payment of (or the lapse of
restrictions relating to) this Award of Performance Stock Units shall constitute a special
long-term incentive payment to you and whether or not it is taken into account as compensation in
determining the amount of any benefit under any retirement or other employee benefit plan of the
Company or any of its Affiliates will be determined solely under the terms of those benefit plans.



16. Headings. Headings are given to the sections and subsections of these Terms and Conditions
and the attached Agreement solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or interpretation of these Terms
and Conditions and the attached Agreement or any provision hereof.



17. Governing Law. The internal law, and not the law of conflicts, of the State of Delaware will
govern all questions concerning the validity, construction and effect of these Terms and Conditions
and the attached Agreement.



18. Notice. For purpose of these Terms and Conditions and the attached Agreement, notices and all
other communications provided for in the attached Agreement, these Terms and Conditions or
contemplated by either shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed United States certified or registered mail, return receipt
requested, postage prepaid, and addressed, in the case of the Company, to the Company at:




P.O. Box 990

Minneapolis, MN 55440

Attention: Corporate Secretary



and in the case of you, to you at the most current address shown on your employment records.
Either party may designate a different address by giving notice of change of address in the manner
provided above, except that notices of change of address shall be effective only upon receipt.






 









 









	 	a)	 	Notice of Termination by Company. Any purported termination of employment of
you by the Company (whether for Cause or without Cause) shall be communicated by a Notice
of Termination to you. No purported termination of employment of you by the Company shall
be effective without a Notice of Termination having been given.
	 
	 	b)	 	Good Reason Notice by You. Any purported termination of employment by you for
Good Reason shall be communicated by a Notice of Termination to the Company. Your
termination of employment will not be for Good Reason unless (i) you give the Company
written notice of the event or circumstance which you claim is the basis for Good Reason
within six (6) months of such event or circumstance first occurring and (ii) the Company is
given thirty (30) days from its receipt of such notice within which to cure or resolve the
event or circumstance so noticed. If the circumstance is cured or resolved within said
thirty (30) days, your termination of employment will not be for Good Reason.




19. Definitions. The following terms, and terms derived from the following terms, shall have the
following meanings when used in the Agreement with initial capital letters unless, in the context,
it would be unreasonable to do so.





	 	a)	 	Cause shall mean:






	 	i)	 	your continued failure to perform your duties with the Company (other than any
such failure resulting from incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to you by the Board or an
officer of the Company which specifically identifies the manner in which the Board or
the officer believes that you have not substantially performed your duties;
	 
	 	ii)	 	the conviction of, or plea of guilty or nolo contendere to, a felony or the
willful engaging by you in conduct which is materially and demonstrably injurious to
the Company;
	 
	 	iii)	 	your commission of a material act or material acts of personal dishonesty
intended to result in your substantial personal enrichment at the expense of the
Company; or
	 
	 	iv)	 	your material violation of Company policies relating to Code of Business
Conduct, Equal Employment Opportunities and Harassment or Workplace Violence;
	 
	 	provided, however, that in no event shall Cause exist by virtue of any action taken by you
(A) in compliance with express written directions of the Board, the Company’s Chief
Executive Officer or the officer to whom you report or (B) in reliance upon the express
written consent of the Company’s counsel.
	 
	 	In each case above, for a termination of employment to be for Cause, you must be provided
with a Notice of Termination (as described in Section 18(a)) within six (6) months after the
Company has actual knowledge of the act or omission constituting Cause. Whether a
termination of employment is for Cause as provided above will be determined by the Company
in its sole discretion based on all the facts and circumstances.






	 	b)	 	Change in Control shall be deemed to have occurred upon any of the following events:






	 	i)	 	the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or
more of either (A) the then outstanding shares of Common Stock or (B) the combined
voting power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a Change in Control:
(A) any acquisition directly from the Company or (B) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company;
	 
	 	ii)	 	the consummation of any merger or other business combination of the Company,
sale or lease of all or substantially all of the Company’s assets or combination of the
foregoing transactions (the “Transactions”) other than a Transaction immediately
following which the stockholders of the Company and any trustee or fiduciary of any
Company employee benefit




 









 






	 	 	 	plan immediately prior to the Transaction own at least sixty percent (60%) of the voting
power, directly or indirectly, of (A) the surviving corporation in any such merger or
other business combination; (B) the purchaser or lessee of the Company’s assets or (C)
both the surviving corporation and the purchaser or lessee in the event of any
combination of Transactions;
	 
	 	iii)	 	within any 24-month period, the persons who were directors immediately before
the beginning of such period (the “Incumbent Directors”) shall cease (for any reason
other than death) to constitute at least a majority of the Board or the board of
directors of a successor to the Company. For this purpose, any director who was not a
director at the beginning of such period shall be deemed to be an Incumbent Director if
such director was elected to the Board by, or on the recommendation of or with the
approval of, at least three-fourths of the directors who then qualified as Incumbent
Directors (so long as such director was not nominated by a person who has expressed an
intent to effect a Change in Control or engage in a proxy or other control contest); or
	 
	 	iv)	 	such other event or transaction as the Board shall determine constitutes a
Change in Control.






	 	c)	 	CIC Date shall mean the date on which a Change in Control occurs.
	 
	 	d)	 	Good Reason shall mean any one or more of the following events occurring during the
two-year period following the CIC Date:






	 	i)	 	Your annual base salary is reduced below the higher of (A) the amount in effect
on the CIC Date or (B) the highest amount in effect at any time thereafter;
	 
	 	ii)	 	Your duties and responsibilities or the program of incentive compensation
(including without limitation long term incentive plans and equity incentive programs),
vacation, fringe benefits, perquisites, retirement and general insurance benefits
offered to your are materially and adversely diminished in comparison to the duties and
responsibilities or the program of such benefits enjoyed by you on the CIC Date; or
	 
	 	iii)	 	You are required to be based at a location more than forty-five (45) miles from
the location where you were based and performed services on the CIC Date or your
business travel obligations are significantly increased over those in effect
immediately prior to the CIC Date;
	 
	 	provided, however, that any diminution of duties or responsibilities that occurs solely as a
result of the fact that the Company ceases to be a public company shall not, in and of
itself, constitute Good Reason.






	 	e)	 	Notice of Termination shall mean a written notice which shall indicate the specific
provision in this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for your termination of employment under the
provisions so indicated.




Original Approval: