Pathmark Stores, Inc. Form 8-K






Exhibit 10.1 





SEPARATION AGREEMENT


          THIS SEPARATION AGREEMENT,
dated as of December 17, 2005,  (the “Agreement”), by and between
Pathmark Stores, Inc., a  Delaware corporation (the “Company”) and
Herbert Whitney  (the “Executive”).


          WHEREAS, the Company and
the Executive are parties to a certain Employment  Agreement, dated as of December 12,
2002 (the “Employment  Agreement”);


          WHEREAS, the Company and
the Executive have previously agreed to the  Executive’s separation from and
termination as an employee and an officer  of the Company and each of its subsidiaries;


          WHEREAS, except as
otherwise set forth herein, the parties intend that this  Agreement shall set forth the
terms of the Executive’s separation and that  this Agreement shall supersede all
prior agreements between the parties  regarding the subject matter contained herein,
including the Employment  Agreement.


          NOW, THEREFORE, in
consideration of the covenants and agreements hereinafter  set forth in this Agreement,
the parties hereto hereby agree as follows:


          1. Termination. The
Executive terminated employment with the Company, effective December 17, 2005
(the “Employment End Date”), and terminated as Executive Vice
President of the Company and from all other positions, offices and directorships with the
Company and its subsidiaries and affiliates (collectively, the “Company
Group”), effective December 17, 2005 (the “Termination
Date”). The Executive’s termination shall be treated as a “termination
by the Company other than for Cause or Disability” within the meaning of the
Employment Agreement.


          2. Severance Payments
and Benefits. In consideration of the covenants set forth herein and the waiver and
release of claims set forth below, and provided that the Executive does not revoke this
Agreement during the Revocation Period (as defined below), the Company shall provide the
Executive with the following severance payments and benefits:


          (a) Severance
Payments. The Company shall pay the Executive (or in the event of his death, the
Executive’s heirs) the following severance payments (the “Severance
Payments”):


(i)  $139,750 to be paid in a lump sum on December 29, 2005; and









(ii) $5,375 to be
paid on a weekly basis in accordance with  the Company’s normal payroll practices,
for the period following the  six-month anniversary of the Employment End Date and ending
on the twenty-four  month anniversary of the Employment End Date.




          (b) Supplemental
Payments. The Company shall pay the Executive supplemental payments in the amount of
$3,430 to be paid on a monthly basis for the 26 month period following the second
anniversary of the Employment End Date (the “Supplemental Payments”)


          (c) Company Car. The
Executive shall be entitled to retain the use of the company car provided to the Executive
during his employment with the Company (the “Company Car”). Within 30 days
following the execution of this Agreement, the Company shall cause to be transferred to
the Executive the title to the Company Car free and clear of all liens, subject to Section
11(b) hereof.


          (d) Treatment of
Equity-Based Compensation. The restricted stock unit previously awarded to the
Executive under the 2000 Employee Equity Plan (together with the individual award
agreements applicable to the Executive’s awards, the “Equity
Plan”), as listed on Schedule A hereto, shall be fully vested and shall be
settled in accordance with the terms and provisions of the Equity Plan. In addition, the
stock options previously awarded to the Executive under the Equity Plan, as listed on
Schedule A (the “Stock Options”), shall be fully vested and shall remain
exercisable in accordance with the terms of the Equity Plan until the second anniversary
thereof; provided that, in the event of any merger, sale or consolidation of the
Company or other transaction affecting the Company’s Common Stock, the Compensation
Committee of the Company’s Board of Directors, in its sole discretion and without
your consent, may provide for:


      (i) the continuation
of the Stock Options by the Company (if  the Company is the surviving corporation);



      (ii) the assumption
of the Stock Options by the surviving  corporation;



     (iii) the substitution by the surviving corporation of
stock  option(s) with substantially the same terms for the outstanding Stock Options;  or



      (iv) the
cancellation of the Stock Options upon payment to you  of a per share amount in cash or
cash equivalents equal to (A) the highest  price paid for a share of the Company’s
Common Stock in such merger, sale,  consolidation or other transaction, minus (B) the
exercise price of the  applicable Stock Option.



          (e) Continuation of
Health Insurance.




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      (i) The Company
shall continue to provide the Executive and  his dependents with health and dental
insurance coverage, including prescription  coverage and coverage under any cafeteria and
flexible spending account plan  maintained by the Company to the extent permitted under
the terms of such plan,  to the extent that such coverage is provided to the Company’s
executives  (the “Health Insurance Benefit”) until the earliest of (A) the
fourth  anniversary of the Employment End Date; (B) the date on which the Executive
becomes eligible to participate in another group health plan; or (C) the date on  which
Executive breaches any of his covenants or obligations under this  Agreement, provided,
however, that beginning after the second anniversary  of the Employment End Date, the
Company shall not provide dental and vision  coverage. In the event that the Executive
does not qualify for the  Company’s Health Insurance Benefit, the Company shall
reimburse the  Executive for the cost required to maintain a comparable Health Insurance
Benefit. The Executive agrees to promptly notify the Company in writing in the  event
that the Executive obtains coverage under another group health plan. The  Executive shall
continue to be obligated to pay his share of premiums,  deductibles and co-payments as in
effect from time to time, if applicable, and  such employee contributions shall be
deducted from the severance payments  provided for in Section 2(a) hereof, it being
understood such employee  contributions for the six-month period following the Employment
End Date shall  be deducted from the payment described in Section 2(a)(i) hereof.



      (ii) Executive
agrees that if at any time he becomes eligible  for Medicare, he shall apply for Medicare
and when accepted, substitute Medicare  coverage for any Company-provided health
insurance plan.



          (f) Life Insurance.
The Company shall continue the Company-provided portion of Executive’s group life
insurance coverage and continue to pay the employer portion of the applicable premiums,
until the earliest of (i) the second anniversary of the Employment End Date,
(ii) the date on which the Executive becomes eligible for coverage under the benefit
plans of a subsequent employer, (iii) the date on which Executive breaches any of his
covenants or obligations under this Agreement or (iv) upon the effective date of
written notice by the Executive to the Company that he wishes to terminate such coverage.


          (g) Pension/401(k)
Plan. The Executive’s participation in the Company’s Savings Plan, Pension
Plan and Excess Benefit Plan and the Supplemental Retirement Agreement, dated as of
October 4, 2001, between the Company and the Executive (the “Retirement
Plans”) shall terminate on the Employment End Date. The Executive’s rights
and obligations under the Retirement Plans shall be governed by applicable law and the
terms and conditions of the Retirement Plans, as the same may be amended as provided in
Section 11(c) hereof.




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          (h) Accrued Salary.
The Company has paid the Executive the full amount of the accrued but unpaid salary that
he earned through the Employment End Date.


          (i) Accrued Vacation.
The Company shall pay the  Executive an amount of $10,750, representing all of the
Executive’s accrued  but unused vacation through the Employment End Date, on or
before December 29,  2005.


          (j) Legal Fees. The
Company shall pay a law firm directly, in an amount not to exceed $10,000, for the
reasonable legal fees incurred by the Executive in connection with the review of this
Agreement.


          (k) No Other
Compensation or Benefits. Except as otherwise specifically provided herein or as
required by Section 4980B(f) of the Internal Revenue Code of 1986, as amended
(the “Code”), or other applicable law, the Executive shall not be
entitled to any compensation or benefits or to participate in any past, present or future
employee benefit programs or arrangements of any member of the Company Group (including,
without limitation, any compensation or benefits under any severance plan, program or
arrangement) on or after the Employment End Date.


          3. Return of
Property. On or prior to the Employment End Date, the Executive surrendered to the
Company all property of the Company Group in the Executive’s possession (other than
the Company Car) and all property made available to the Executive in connection with his
employment by the Company, including, without limitation, any and all Company credit
cards, keys, security access codes, records, manuals, customer lists, notebooks,
computers, computer programs and files, papers, electronically stored information and
documents kept or made by the Executive in connection with his employment. The Executive
shall delete all electronically stored information and documents relating to the Company
kept or made by the Executive in connection with his employment that were stored on his
personal computer and laptop.


          4. Cooperation. From
and after the date hereof, the Executive shall cooperate in all reasonable respects with
the Company Group and their respective directors, officers, attorneys and experts in
connection with the conduct of any action, proceeding, investigation or litigation
involving the Company Group, including any such action, proceeding, investigation or
litigation in which the Executive is called to testify. The Company agrees to reimburse
the Executive for all reasonable out-of-pocket expenses incurred by the Executive in
connection with such cooperation.


          5. Unfavorable
Comments.


          (a) Public Comments by
the Executive. The Executive agrees to refrain from making, directly or indirectly,
now or at any time in the future, whether in writing, orally or electronically:
(i) any derogatory comment concerning the Company Group or any of their current or
former directors, officers, employees or shareholders, or (ii) any other comment that
could reasonably be expected to be detrimental to the business or financial prospects or
reputation of the Company Group.




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          (b) Public Comments by
the Company. The Company shall require its directors and executive officers
to refrain from making, directly or indirectly, now or at any time in the future, whether
in writing, orally or electronically: (i) any derogatory comment concerning the
Executive, or (ii) any other comment that could reasonably be expected to be
detrimental to the Executive’s business or financial prospects or reputation.


          6. Noncompetition;
Nonsolicitation; Confidentiality.


          (a) Noncompetition.
During the period commencing on the date hereof and ending on the second anniversary of
the Employment End Date (the “Restricted Period”), the Executive
shall not, without the prior written consent of the Company’s Board of Directors,
directly or indirectly, whether as owner, consultant, employee, partner, joint venturer,
or agent, through stock ownership, investment of capital, lending of money or property,
rendering of services, or otherwise (except ownership of less than 1% of the number of
shares outstanding of any securities which are publicly traded), compete in the States of
New Jersey, New York, Delaware or Pennsylvania with the retail supermarket or drugstore
business of the Company or any parent or subsidiary of the Company (such businesses are
individually and as a group hereinafter referred to as the “Business”),
provide services to, whether as an employee or consultant, own, manage, operate, control,
participate in or be connected with (as a stockholder, partner, or any similar ownership
interest) any corporation, firm, partnership, joint venture, sole proprietorship or other
entity which so competes with the Business, except for the aforementioned 1% ownership of
publicly traded securities. The parties acknowledge that the manufacture, processing or
distribution of products sold in the retail supermarket or drugstore business shall not,
in and of itself constitute competition with the Business.


          (b) Nonsolicitation.
During the Restricted Period, the Executive shall not, without the prior written consent
of the Company’s Board of Directors, directly or indirectly (i) solicit in
competition with the Business any person, group or class of persons who at any time either
during the Executive’s employment with the Company have any business relationship
with the Business, the loss, diminution or moderation of which would likely be detrimental
to the Business (it being understood that such solicitation shall not include the
Executive’s utilization of any provider of services or products to the Business in
any business in which he may be engaged or employed other than the Business);
(ii) solicit or recruit, directly or indirectly, any employee or independent
contractor of the Company for the purpose of being employed by the Executive, directly or
indirectly, or by any competitor of the Company on behalf of which the Executive is acting
as an agent, representative or employee; (iii) solicit, influence, or attempt to
influence, for a purpose or in a manner that would likely be materially detrimental to the
Business, any provider of services or products to the Business with respect to its
relationship with the Business, including, without limitation, any person or entity which
has been a provider of services or products to the Business during the Executive’s
employment with the Company, or take any action detrimental to the existing or prospective
relationships between the Business and any provider of services; or (iv) assist or
encourage any other person in carrying out, directly or indirectly, any activity that
would be prohibited by the provisions of this Section 6(b) if such activity were carried
out by the Executive, and, in particular, the Executive agrees that he will not, directly
or indirectly, induce any employee of the Business to carry out any such activity.




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          (c) Confidentiality.
The Executive recognizes that the services he performed for the Company are special,
unique and extraordinary in that he has acquired confidential information and trade
secrets concerning the operations of the Company Group the use or disclosure of which
could cause the Company substantial loss and damages which could not be readily
calculated, and for which no remedy at law would be adequate. Accordingly, the Executive
covenants and agrees with the Company that the Executive will not at any time, except with
the prior written consent of the Company, directly or indirectly, disclose any secret or
confidential information that the Executive learned by reason of his association with the
Company. The term “confidential information” includes, without
limitation, information not previously disclosed to the public or to the trade by the
Company’s management with respect to the Company or any of its parent’s or
subsidiaries’ business plans, prospects and opportunities, the identity of any
suppliers, proprietary information regarding customers, operational strengths and
weaknesses, trade secrets, know-how and other intellectual property, systems, procedures,
manuals, confidential reports, product price lists, marketing plans or strategies, and
financial information.


          7. Exclusive
Property. The Executive confirms that all “confidential information” (as
such term is used in the Employment Agreement) is and shall remain the exclusive property
of the Company Group. All business records, papers and documents kept or made by the
Executive relating to the business of the Company Group shall be and remain the property
of the Company Group. The Executive further confirms that, on or prior to the Termination
Date, the Executive surrendered to the Company all copies and extracts of any written
confidential information acquired or developed by the Executive during any such
employment, shareholding or association, and that the Executive has not removed or taken
from the premises of any member of the Company Group any written confidential information
or any copies or extracts thereof. Upon the request and at the expense of the Company
Group, the Executive shall promptly make all disclosures, execute all instruments and
papers and perform all acts reasonably necessary to vest and confirm in the Company Group,
fully and completely, all rights created or contemplated by this Section 7.




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          8. Certain Remedies.


          (a) Remedies.
Without intending to limit the remedies available to the Company Group, including, but not
limited to, those set forth in Section 8(b) hereof, the Executive agrees that a breach of
any of the covenants contained in this Agreement may result in material and irreparable
injury to the Company Group for which there is no adequate remedy at law, that it will not
be possible to measure damages for any such injuries precisely and that, in the event of
such a breach or threat thereof, any member of the Company Group shall be entitled to seek
a temporary restraining order or a preliminary or permanent injunction, or both, without
bond or other security, restraining the Executive from engaging in activities prohibited
by the covenants contained in this Agreement or such other relief as may be required
specifically to enforce any of the covenants contained in this Agreement. Such injunctive
relief in any court shall be available to the Company Group, upon proofs satisfactory to
the court, in lieu of, or prior to or pending determination in, any arbitration
proceeding.


          (b) Cessation of Payments.


      (i) In the event
that the Executive (A) files any charge,  claim, demand, action or arbitration with
regard to the Executive’s  employment, compensation or termination of employment
under any federal, state  or local law, or an arbitration under any industry regulatory
entity, except in  either case for a claim for breach of this Agreement or failure to
honor the  obligations set forth herein, or (B) breaches or has breached any of the
covenants or representations contained in this Agreement, the Company shall be  entitled
to cease making any payments due hereunder.



      (ii) In the event
the Beneficiary (as defined in the  Supplemental Retirement Agreement dated as of October
4, 2001 (the  “SRA”) between the Company and the Executive) becomes eligible to
receive benefits under the SRA prior to the second anniversary of the Employment  End
Date, the Company shall not be obligated to commence the Supplemental  Payments.



      (iii) In the event
the Beneficiary becomes eligible to receive  benefits under the SRA on or after the
second anniversary of the Employment End  Date, the Company shall be entitled to cease
making the Supplemental Payments  hereunder.



          9. Release.




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          (a) General Release.
In consideration of the payments and benefits provided to the Executive under this
Agreement and after consultation with counsel, the Executive, and each of the
Executive’s respective heirs, executors, administrators, representatives, agents,
successors and assigns (collectively, the “Releasors”) hereby
irrevocably and unconditionally releases and forever discharges the Company Group and each
of its respective officers, employees, directors, shareholders and agents from any and all
claims, actions, causes of action, rights, judgments, obligations, damages, demands,
accountings or liabilities of whatever kind or character (collectively,
“Claims”), including, without limitation, any Claims under any federal,
state, local or foreign law, that the Releasors may have, or in the future may possess,
arising out of (i) the Executive’s employment relationship with and service as
an employee, officer or director of the Company Group, and the termination of such
relationship or service, (ii) the Employment Agreement, or (iii) any event,
condition, circumstance or obligation that occurred, existed or arose on or prior to the
date hereof; provided, however, that the release set forth in this Section
9(a) shall not apply to (i) the obligations of the Company under this Agreement and
(ii) any indemnification rights the Executive may have in accordance with the
Company’s governance instruments or under any director and officer liability
insurance maintained by the Company with respect to liabilities arising as a result of the
Executive’s service as an officer and employee of the Company. The Releasors further
agree that the payments and benefits described in this Agreement shall be in full
satisfaction of any and all Claims for payments or benefits, whether express or implied,
that the Releasors may have against the Company Group arising out of the Executive’s
employment relationship or the Executive’s service as an employee, officer and
director of the Company Group and the termination thereof.


          (b) Specific Release of
ADEA Claims. In further consideration of the payments and benefits provided to the
Executive under this Agreement, the Releasors hereby unconditionally release and forever
discharge the Company Group, and each of their respective officers, employees, directors,
shareholders and agents from any and all Claims that the Releasors may have as of the date
the Executive signs this Agreement arising under the Federal Age Discrimination in
Employment Act of 1967, as amended, and the applicable rules and regulations promulgated
thereunder (“ADEA”). By signing this Agreement, the Executive hereby
acknowledges and confirms the following: (i) the Executive was advised by the Company
in connection with his termination to consult with an attorney of his choice prior to
signing this Agreement and to have such attorney explain to the Executive the terms of
this Agreement, including, without limitation, the terms relating to the Executive’s
release of claims arising under ADEA and, the Executive has in fact consulted with an
attorney; (ii) the Executive was given a period of not fewer than 21 days to consider
the terms of this Agreement and to consult with an attorney of his choosing with respect
thereto; (iii) the Executive is providing the release and discharge set forth in this
Section 9(b) only in exchange for consideration in addition to anything of value to which
the Executive is already entitled; and (iv) that the Executive knowingly and
voluntarily accepts the terms of this Agreement.


          (c) No Assignment.
The Executive represents and warrants that he has not assigned any of the Claims being
released under this Section 9.



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          (d) Claims. The
Executive agrees that he has not instituted, assisted or otherwise participated in
connection with, any action, complaint, claim, charge, grievance, arbitration, lawsuit,
administrative agency proceeding, or action at law or otherwise against any member of the
Company Group or any of their respective officers, employees, directors, shareholders or
agents.


          10. Company Release.
The Company Group and each of its respective officers, employees, directors, shareholders
and agents hereby irrevocably and unconditionally release the Executive from any and all
Claims arising from or in connection with the Executive’s employment by the Company
Group and/or separation therefrom and/or the post-separation period thereafter up to and
including the date hereof; provided, however, that the release set forth in
this Section 10 shall not apply to Claims arising from or in connection with material
facts not known to the Company’s executives on the date hereof or to the obligations
of Executive under this Agreement.


          11. Miscellaneous.


          (a) Entire
Agreement. This Agreement sets forth the entire agreement and understanding of the
parties hereto with respect to the matters covered hereby and supersedes and replaces any
express or implied, written or oral, prior agreement, plan or arrangement with respect to
the terms of the Executive’s employment and the termination thereof which the
Executive may have had with the Company Group, but excluding the Retirement Plans and,
with respect to the awards listed on Schedule A, the Equity Plan. Except as set forth in
Section 11(d) below, this Agreement may be amended only by a written document signed by
the parties hereto.


          (b) Withholding
Taxes. Any payments made or benefits provided to the Executive under this Agreement
shall be reduced by the lowest applicable withholding taxes.


          (c) Section 409A. If
any provision of this Agreement contravenes Section 409A of the Code, the regulations
promulgated thereunder or any related guidance issued by the U.S. Treasury Department,
this Agreement shall be reformed to maintain to the maximum extent practicable the
original intent of the provision without violating the requirements of Section 409A of the
Code. In addition, if the Company shall, with respect to any other employee of the
Company, amend any nonqualified deferred compensation plan (as defined in Section 409A(d)
of the Code) to comply with or to conform to the provisions of Section 409A of the Code,
the Company shall similarly amend any comparable such plan with respect to the Executive.


          (d) Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New Jersey.



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          (e) Waiver. The
failure of any party to this Agreement to enforce any of its terms, provisions or
covenants shall not be construed as a waiver of the same or of the right of such party to
enforce the same. Waiver by any party hereto of any breach or default by another party of
any term or provision of this Agreement shall not operate as a waiver of any other breach
or default.


          (f) Severability. In
the event that any one or more of the provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the
remainder of the Agreement shall not in any way be affected or impaired thereby. Moreover,
if any one or more of the provisions contained in this Agreement shall be held to be
excessively broad as to duration, activity or subject, such provisions shall be construed
by limiting and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.


          (g) Notices. Any
notices required or made pursuant to this Agreement shall be in writing and shall be
deemed to have been given when delivered by hand, sent by telecopier or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to General
Counsel, Pathmark Stores, Inc., 200 Milik Street, Carteret, New Jersey 07008, telecopier:
(732) 499-6891, or to the Executive at his current address on the books and records of the
Company, or to such other address as either party may furnish to the other in writing in
accordance with this Section 11(h). Notices of change of address shall be effective only
upon receipt.


          (h) Descriptive
Headings. The paragraph headings contained herein are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.


          (i) Counterparts.
This Agreement may be executed in one  or more counterparts, which, together, shall
constitute one and the same  agreement.


          (j) Successors and
Assigns. Except as otherwise provided herein, this Agreement shall inure to the
benefit of and be binding upon and enforceable by and against the Executive and the
Company and their respective successors and assigns (and in the event of the
Executive’s death, the Executive’s heirs). The Company will require any
successor (whether direct or indirect , by purchase, merger, consolidation or otherwise)
to all or substantially all of the business or assets of the Company expressly to assume
and to 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;
provided, however, that no such assumption shall relieve the Company of its
obligations hereunder.



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          (k) Arbitration. Any
dispute or controversy arising under this Agreement that cannot be mutually resolved by
the Executive and the Company shall be settled exclusively by arbitration in accordance
with the rules of the American Arbitration Association in New Jersey before one arbitrator
of exemplary qualifications and stature, having due regard to the subject matter of the
dispute or controversy, who shall be selected jointly by the Executive and the Company,
or, if agreement on the selection of the arbitrator cannot be reached, shall be selected
by the American Arbitration Association; provided that any arbitrator selected by
the American Arbitration Association shall not, without the consent of both the Executive
and the Company, be affiliated with the Executive or the Executive’s affiliates or
the Company or its affiliates. Judgment may be entered on the arbitrator’s award in a
New Jersey State Court. The arbitrator shall be empowered to enter an equitable decree
mandating specific enforcement of the terms of this Agreement. Each party shall bear its
own expenses incurred in any arbitration arising out of a dispute or controversy under
this Agreement. Notwithstanding any other provisions of this Section 11(l), in the event
that any dispute or controversy arising with respect to the payments or benefits under
Section 2 hereof is referred to arbitration by the Executive under this Section 11(l) to
require the Company to provide such payments or benefits, and the arbitrator enters an
award in favor of the Executive with respect thereto, the arbitrator shall also enter an
award in favor of the Executive and against the Company of reasonable attorneys’ fees
and costs.


          12. Revocation. This
Agreement may be revoked by the Executive within the seven-day period commencing on the
date the Executive signs this Agreement (the “Revocation Period”),
and, accordingly, shall not become effective until the day following the last day of the
Revocation Period. In the event of any such revocation by the Executive, all obligations
of the parties under this Agreement shall terminate and be of no further force and effect
as of the date of such revocation. No such revocation by the Executive shall be effective
unless it is in writing and signed by the Executive and received by the Company prior to
the expiration of the Revocation Period. The Executive shall have a period of 21 days from
the date hereof to consider this Agreement and to consult with an attorney with respect
thereto. If Executive does not sign this Agreement during such twenty-one-day period,
then, upon expiration of such period, this Agreement shall be considered to have been
withdrawn by the Company and shall be void and without effect.




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IN WITNESS WHEREOF, the Company has executed this Agreement as of the date
first set forth above and the Executive has executed this Agreement as of the
date set forth below (or, if the Executive does not include a date under the
Executive’s signature line, the date set forth shall be the date this
Agreement, signed by the Executive, is received by the Company).







PATHMARK STORES, INC.



By: /s/ John T. Standley

Name: John T. Standley

Title: Chief Executive Officer





          THE EXECUTIVE HEREBY
ACKNOWLEDGES THAT THE EXECUTIVE HAS READ THIS  AGREEMENT, THAT THE EXECUTIVE FULLY KNOWS,
UNDERSTANDS AND APPRECIATES ITS  CONTENTS, AND THAT THE EXECUTIVE HEREBY ENTERS INTO THIS
AGREEMENT VOLUNTARILY  AND OF HIS OWN FREE WILL.


ACCEPTED AND AGREED:




/s/ Herbert Whitney

Herbert Whitney





Date: December 17, 2005



#32262



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Schedule A


Restricted Stock Unit



	Grant Date	Number of Shares
	 
	6/09/05	2,500



Stock Options


	Grant Date	Number of Shares 	Exercise Price
	 
	10/25/2000	 	32,000	 	$13.94	 
	03/29/2001	 	20,000	 	$17.25	 
	10/05/2001	 	100,000	 	$22.35	 
	09/12/02	 	28,000	 	$11.70	 
	10/28/2002	 	50,000	 	$  4.65	 
	06/09/2005	 	12,500	 	$  8.60