Subsidiary of such Person is a general partner, (ii) of which such Person, any one or more ofits other Subsidiaries of such Person, or such Person and any one or more of its otherSubsidiaries, directly or indirectly owns or controls securities or other equity interestsrepresenting more than fifty percent (50%) of the aggregate voting power, or (iii) of which suchPerson, any one or more of its other Subsidiaries of such Person, or such Person and any one ormore its other Subsidiaries, possesses the right to elect more than fifty percent (50%) of theboard of directors or Persons holding similar positions; and “***Person***” means any individual,corporation, partnership, limited liability company, firm, joint venture, association, joint-stockcompany, trust, unincorporated organization, or other entity or group (as defined in Section13(d)(3) of the Securities Exchange Act of 1934, as amended).     2. Term. The term of Executive’s employment under this Agreement (the “***Term***”) shallcommence on the Effective Date (as defined in Section 19) and shall continue for a period of three(3) years thereafter; provided, however, that at the end of each year of the Term, the Term shallbe extended for an additional one-year period unless Executive’s employment with the Company isterminated in accordance with Section 5. References in this Agreement to the “balance of the Term”shall mean the period of time remaining on the scheduled Term after giving effect to the mostrecent extension of the Term occurring prior to any termination of the Term.     3. Compensation.          3.1 Base Salary. During the Term, the Company will pay to Executive a base salary atthe rate of $603,200 per year, payable in accordance with the Company’s practices in effect fromtime to time (“***Base Salary***”). Amounts payable shall be reduced by standard withholding and otherauthorized deductions. Such Base Salary shall be reviewed during the Term for increase (but notdecrease) in the sole discretion of the Board, or such individual, group or committee that theBoard may select as its delegate, not less frequently than annually during the Term. In conductingany such review, the Board or such delegate shall consider and take into account, among otherthings, any change in Executive’s responsibilities, performance of Executive, the compensation ofother similarly situated executives of comparable companies and other pertinent factors. Onceincreased, Executive’s Base Salary shall not be decreased except upon mutual agreement between theparties, and, as so increased, shall constitute Base Salary hereunder.          3.2 Bonuses; Incentive, Savings and Retirement Plans; Welfare Benefit Plans.               (a) Executive shall be entitled to participate in all annual and long-term bonuses andincentive, savings and retirement plans generally available to other similarly situated executiveemployees of the Company. Executive, and Executive’s family as the case may be, shall be eligibleto participate in and receive all benefits under welfare benefit plans, practices, programs andpolicies provided to the Chief Executive Officer, the President, other Executive Vice Presidentsand other Senior Vice Presidents of the Company, including, without limitation, medical,prescription, dental, disability, salary continuance, employee life, group life, accidental deathand travel accident insurance plans and programs. The Company reserves the right to modify,suspend or discontinue any and all of its benefits referred to in this
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Section 3.2 at any time without recourse by Executive so long as such action is takengenerally with respect to other executives and does not single out Executive.               (b) In addition to his Base Salary, for each fiscal year ending during the Term, Executivewill be entitled to participate in the Cinemark Holdings, Inc. Performance Bonus Plan (the “***AnnualBonus Plan***”), as such Annual Bonus Plan may be amended from time to time, or pursuant to the termsof any successor plan. If the performance targets specified by the Compensation Committee of theBoard are satisfied, Executive will receive an annual incentive cash bonus (the “***Annual Bonus***”)based upon the award opportunity parameters and performance targets established by the CompensationCommittee of the Board pursuant to the terms of the Annual Bonus Plan. The amount of the AnnualBonus award opportunity and the performance targets that must be satisfied to receive such AnnualBonus award will be established by the Compensation Committee, in its sole discretion, each fiscalyear pursuant to the terms of the Annual Bonus Plan. All such Annual Bonus award payments will bepayable as specified pursuant to the terms of the Annual Bonus Plan and will be reduced by standardwithholding and other authorized deductions.               (c) Equity Awards. Executive will be eligible to participate in and receive grants ofequity incentive awards (“***Equity Awards***”) under the Company’s Amended and Restated 2006 Long TermIncentive Plan (the “***Equity Incentive Plan***”), as such Equity Incentive Plan may be amended fromtime to time, or pursuant to the terms of any successor plan. Equity Awards to Executive may begranted at such times and subject to such terms and conditions as the Equity Incentive Planadministrator shall determine. Executive has received prior grants of Stock Options which shallcontinue to be subject to the terms of this Agreement provided herein. Upon the consummation of aSale of the Company, Executive’s Equity Awards will accelerate and become fully vested (assumingExecutive is then, and has been continuously, employed by the Company or any of its Subsidiaries).For purposes hereof, “***Sale of the Company***” is defined and has the meaning specified in the EquityIncentive Plan.          3.3 Fringe Benefits. Executive shall be entitled to receive fringe benefitsconsistent with Executive’s duties and position, and in accordance with the benefits provided toother similarly situated executive employees of the Company. The Company reserves the right tomodify, suspend or discontinue any and all of its fringe benefits referred to in this Section 3.3at any time without recourse by Executive so long as such action is taken generally with respect toother similarly situated peer executives and does not single out Executive.          3.4 Travel and Expenses. Executive shall be entitled to reimbursement for expensesincurred in the furtherance of the business of the Company in accordance with the Company’spractices and procedures, as they may exist from time to time. Executive may, in his discretion,elect to purchase, and be reimbursed for, business class tickets on any international flights forwhich scheduled flight time exceeds five hours. Executive shall keep complete and accurate recordsof all expenditures such that Executive may substantiate and fully account for such expensesaccording to the Company’s practices and procedures.          3.5 Vacation. Executive shall be entitled to no less than twenty (20) days paidvacation and other absences from work in accordance with the Company’s vacation and absence
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policy in effect at the time of such vacations or absences which shall be taken at such timesas are consistent with Executive’s responsibilities hereunder.          3.6 Payment of Compensation and Benefits. Executive acknowledges and agrees that allpayments required to be paid to Executive and benefits to be provided to Executive may be paid orprovided by the Company, its successor or any other Subsidiary of the Company.     4. Confidential Information; Non-Competition; Non-Solicitation.          4.1 General. Executive acknowledges that during his employment and as a result of hisrelationship with the Company and its affiliates, Executive has obtained and will obtain knowledgeof, and has been given and will be given access to, information, including, but not limited to,information regarding the business, operations, services, proposed services, business processes,advertising, marketing and promotional plans and materials, price lists, pricing policies, ticketsales, film licensing, purchasing, real estate acquisition and leasing, other financial informationand other trade secrets, confidential information and proprietary material of the Company and itsaffiliates or designated as being confidential by the Company or its affiliates which are notgenerally known to non-Company personnel, including information and material originated, discoveredor developed in whole or in part by Executive (collectively referred to herein as “***ConfidentialInformation***”). The term “Confidential Information” does not include any information which (i) atthe time of disclosure is generally available to the public (other than as a result of a disclosureby Executive in breach of this Agreement), or (ii) was available to Executive on a non-confidentialbasis from a source (other than the Company or its Affiliates or their representatives) that is notand was not prohibited from disclosing such information to Executive by a contractual, legal orfiduciary obligation. Executive agrees that during the Term and, to the fullest extent permittedby law, thereafter, Executive will, in a fiduciary capacity for the benefit of the Company and itsaffiliates, hold all Confidential Information strictly in confidence and will not directly orindirectly reveal, report, disclose, publish or transfer any of such Confidential Information toany Person, or utilize any of the Confidential Information for any purpose, except in furtheranceof Executive’s employment under this Agreement and except to the extent that Executive may berequired by law to disclose any Confidential Information. Executive acknowledges that the Companyand its affiliates are providing Executive additional Confidential Information that Executive wasnot given prior to execution of this Agreement, as further consideration to Executive for executingthis Agreement, including the promises and covenants made by Executive in this Section 4.          4.2 Non-Competition. In further consideration of the compensation to be paid toExecutive hereunder, Executive acknowledges that during the course of his employment with theCompany and its Subsidiaries, he has, and will, become familiar with the trade secrets of theCompany and its Subsidiaries and with other Confidential Information concerning the Company and itsSubsidiaries and that his services have been and shall continue to be of special, unique andextraordinary value to the Company and its Subsidiaries. Therefore, Executive agrees that, duringExecutive’s employment hereunder and for one year after the date of termination of employment (the“***Non-compete Period***”), he shall not directly or indirectly own any interest in, manage, control,participate in, consult with, render services for, be employed in an executive, managerial oradministrative capacity by, or in any manner engage in, any Competing Business.
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For purposes hereof, “***Competing Business***” means any business that owns, operates or managesany movie theatre within a 25-mile radius (if such theatre is outside of a Major DMA) or a 10-mileradius (if such theatre is within a Major DMA) of any theatre (i) being operated by the Company orany of its Subsidiaries during Executive’s employment hereunder (but excluding any theatres whichthe Company and its Subsidiaries have ceased to operate as of the date of the termination ofExecutive’s employment hereunder), or (ii) under consideration by the Company or any of itsSubsidiaries for opening as of the date of termination of employment; “***Major DMA***” means aDesignated Market Area with a number of households in excess of 700,000; “***Designated Market Area***”means each of those certain geographic market areas for the United States designated as such byNielsen Media Research, Inc. (“***Nielsen***”), as modified from time to time by Nielsen, whereby Nielsendivides the United States into non-overlapping geography for planning, buying and evaluatingtelevision audiences across various markets and whereby a county in the United States isexclusively assigned, on the basis of the television viewing habits of the people residing in thecounty, to one and only one Designated Market Area; and all theatres operated by the Company andits Subsidiaries in Canada shall be treated as being outside of a Major DMA. Nothing herein shallprohibit Executive from (i) being a passive owner of not more than five percent (5%) of theoutstanding stock of any class of a corporation which is publicly traded, so long as Executive hasno active participation in the business of such corporation, or (ii) during the one year periodfollowing the termination of Executive’s employment, owning, operating or investing in up to five(5) movie theatres, so long as each such theatre is outside of a 25-mile radius of the theatresbeing operated by the Company or any of its Subsidiaries or under consideration by the Company orany of its Subsidiaries for opening, in each case, as of the time of termination of Executive’semployment. During the one-year period following the termination of Executive’s employment for anyreason, Executive shall provide reasonable notice to the Company of his plans for acquiringownership in, commencing operations of, or investing in, any movie theatre prior to any such event.Notwithstanding the foregoing, Executive’s obligations under this Section 4.2 shall terminate andbecome null and void if Executive terminates his employment with Good Reason.          4.3 Proprietary Interest. All inventions, designs, improvements, patents, copyrightsand discoveries conceived by Executive during Executive’s employment by the Company or itsaffiliates that are useful in or directly or indirectly related to the business of the Company andits affiliates or to any experimental work carried on by the Company or its affiliates, shall bethe property of the Company and its affiliates. Executive will promptly and fully disclose to theCompany or its affiliates all such inventions, designs, improvements, patents, copyrights anddiscoveries (whether developed individually or with other persons) and shall take all stepsnecessary and reasonably required to assure the Company’s or such affiliate’s ownership thereof andto assist the Company and its affiliates in protecting or defending the Company’s or suchaffiliate’s proprietary rights therein.          4.4 Return of Materials. Executive expressly acknowledges that all data, books,records and other Confidential Information of the Company and its affiliates obtained in connectionwith the Company’s business is the exclusive property of the Company or its affiliates and thatupon the termination of Executive’s employment by the Company or its affiliates, Executive willimmediately surrender and return to the Company or its affiliates all such items and all otherproperty belonging to the Company or its affiliates then in the possession of Executive, andExecutive shall not make or retain any copies thereof.
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          4.5 Property of the Company. Executive acknowledges that from time to time in thecourse of providing services pursuant to this Agreement, Executive shall have the opportunity toinspect and use certain property, both tangible and intangible, of the Company and its affiliatesand Executive hereby agrees that such property shall remain the exclusive property of the Companyand its affiliates. Executive shall have no right or proprietary interest in such property, whethertangible or intangible, including, without limitation, Executive’s customer and supplier lists,contract forms, books of account, computer programs and similar property.          4.6 Reasonable in Scope and Duration; Consideration. Executive agrees andacknowledges that the restrictions contained in this Section 4 are reasonable in scope and durationand are necessary to protect the business interests and Confidential Information of the Company andits affiliates after the Effective Date of this Agreement, and Executive further agrees andacknowledges that he has reviewed the provisions of this Agreement with his legal counsel.Executive acknowledges and agrees that Executive will receive substantial, valuable considerationfrom the Company for the covenants contained in this Section 4, including without limitation,compensation and other benefits.     5. Termination.          5.1 Termination Prior to Expiration of Term. Notwithstanding anything to the contrarycontained in Section 2, Executive’s employment may be terminated prior to the expiration of theTerm only as provided in this Section 5.          5.2 Death or Disability.               (a) The Company may terminate Executive’s employment hereunder due to death or Disability (asdefined below). If Executive’s employment hereunder is terminated as a result of death orDisability, Executive (or Executive’s estate or personal representative in the event of death)shall be entitled to receive (i) all Base Salary due to Executive through the date of termination,(ii) the actual bonus, if any, he would have received in respect of the fiscal year in which histermination occurs, prorated by a fraction, the numerator of which is the number of days in suchfiscal year prior to the date of Executive’s termination and the denominator of which is 365,payable at the same time as any Annual Bonus payments are made to other similarly situated activeexecutives pursuant to the terms of the Annual Bonus Plan and subject to satisfaction of theperformance targets for such fiscal year, (iii) any previously vested Equity Awards and benefits,such as retirement benefits and vacation pay, in accordance with the terms of the plan or agreementpursuant to which such Equity Awards or benefits were granted to Executive (items (i) through (iii)above collectively referred to as “***Accrued Employment Entitlements***”), (iv) a lump sum payment equalto twelve (12) months of Executive’s full Base Salary, which shall be payable as soon aspracticable following the date of termination but not later than March 15 of the first calendaryear following the year of such termination; provided, that in the case of Disability such paymentshall be offset by the amount of Base Salary paid by the Company to Executive or Executive’spersonal representative from the date on which Executive was first unable substantially to performExecutive’s duties through the date of such termination, and (v) any benefits payable to Executiveor Executive’s beneficiaries, as applicable, in accordance with the terms of the applicable benefitplan. At the Company’s expense, Executive and/or Executive’s dependents shall be entitled tocontinue to
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participate in the Company’s welfare benefit plans and programs on the same terms as similarlysituated actively-employed executives for a period of twelve (12) months from the date of suchtermination. Executive and/or Executive’s dependents shall thereafter be entitled to anycontinuation of such benefits provided under such benefit plans or by applicable law. Followingthe death or Disability of Executive, Executive’s participation under any Equity Award or otherincentive compensation plan (other than Annual Bonuses included in the definition of AccruedEmployment Entitlements) shall be governed by the terms of such plans.               (b) “***Disability***” shall mean if, by reason of any medically determinable physical or mentalimpairment that can be expected to result in death or can be expected to last for a continuousperiod of not less than twelve (12) months, Executive is either (i) unable to engage in anysubstantial gainful activity; or (ii) receiving income replacement benefits for a period of notless than three (3) months under an accident and health plan covering Company employees.Executive’s Disability shall be determined by the Company, in good faith, based upon informationsupplied by Executive and the physician mutually agreed upon by the Company and Executive.Executive agrees to submit to physical exams and diagnostic tests reasonably recommended by suchphysician.          5.3 Termination by the Company for Cause or by Executive because of a VoluntaryTermination.               (a) Executive’s employment hereunder may be terminated by the Company for Cause (ashereinafter defined) or by Executive under a Voluntary Termination (as hereinafter defined). IfExecutive’s employment hereunder is terminated under this Section 5.3, Executive shall beentitled to receive all Base Salary due to Executive through the date of termination. Furthermore,all previously vested rights of Executive under an Equity Award or similar incentive compensationplan or program shall be treated in accordance with the terms of such plan or program. Except asspecifically set forth in this Section 5.3, the Company shall have no further obligationsto Executive following a termination for Cause, or a Voluntary Termination.               (b) “***Cause***” shall mean (i) subject to clause (ii) below, a felony which results in aconviction, a guilty plea or a plea of nolo contendere, (ii) engaging in conduct involving moralturpitude that causes the Company and its affiliates material and demonstrable public disrepute ormaterial and demonstrable economic harm; (iii) a willful material breach of this Agreement byExecutive and/or Executive’s gross neglect of Executive’s duties hereunder which is not cured tothe Board’s reasonable satisfaction within fifteen (15) days after notice thereof is given toExecutive by the Board; or (iv) the intentional wrongful damage to or misappropriation orconversion of material property of the Company or its affiliates. No act or failure to act by theExecutive shall be deemed “willful” or “intentional” if done, or omitted to be done, by him in goodfaith and with the reasonable belief that his action or omission was in the best interest of theCompany. Notwithstanding the foregoing, the Company shall not be entitled to terminate Executivefor Cause under clause (ii) above, unless (A) the Board shall have made a good faith investigationand can produce demonstrable evidence of the existence of the commission of the fraud, embezzlementor theft which would serve as the basis of Executive’s termination for Cause under clause (ii)above, during which investigation the Company may place Executive on a paid administrative leave ofabsence and (B) no less than 2/3 of the
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members of the Board (excluding Executive if Executive is then a member of the Board) shallhave made a good faith determination that the Company is entitled to terminate Executive for Causeunder clause (ii) above.               (c) “***Voluntary Termination***” shall mean a termination of employment by Executive on Executive’sown initiative other than (i) a termination due to Disability or (ii) a termination for GoodReason.          5.4 Termination by the Company without Cause or by Executive for Good Reason. TheCompany may terminate Executive’s employment hereunder without Cause, and Executive shall bepermitted to terminate Executive’s employment hereunder for Good Reason (as hereinafter defined).If the Company terminates Executive’s employment hereunder without Cause, other than due to deathor Disability, or if Executive effects a termination for Good Reason, Executive shall be entitledto receive the payments and benefits set forth in this Section 5.4.               (a) If Executive’s employment hereunder is terminated by the Company without Cause, so long asExecutive has not breached any of the terms contained in Section 4, Executive shall beentitled to each of the following:               (i) Executive’s Accrued Employment Entitlements;               (ii) two times Executive’s annual Base Salary in effect as of the date of suchtermination, payable in accordance with the Company’s normal payroll practices for a periodof twenty-four (24) months following any such termination; provided, however, that ifExecutive is, as of the date of such termination, a “specified employee” within the meaningof Section 409A of the Internal Revenue Code of 1986, as amended (the “***Code***”), any amountthat is (1) not treated as a short-term deferral within the meaning of Treas. Regs.§1.409A-1(b)(4), and (2) exceeds the separation pay limit under Treas. Regs.§1.409A-1(b)(9)(iii)(A) (two times the lesser of (A) the sum of Executive’s annualizedcompensation based on Executive’s annual Base Salary for the calendar year preceding thecalendar year in which termination occurs (adjusted for any increase during that year thatwas expected to continue indefinitely if Executive’s employment had not been terminated), or(B) the maximum amount that may be taken into account under a qualified plan pursuant toCode Section 401(a)(17) for the year in which such termination occurs), will not be paidbefore the date that is six (6) months after such date of termination, or if earlier, thedate of Executive’s death. Any payments or benefits to which Executive would otherwise beentitled during such non-payment period will be accumulated and paid or otherwise providedto Executive on the first day of the seventh month following such date of termination, or ifearlier, within 30 days of Executive’s death to his surviving spouse (or to his estate ifExecutive’s spouse does not survive him). For purposes of this Section 5.4(a)(ii) andSection 5.4(b), any amount that is paid as a short-term deferral within the meaning ofTreas. Regs. §1.409A-1(b)(4), or within the separation pay limit under Treas. Regs.§1.409A-1(b)(9)(iii)(A) shall be treated as a separate payment, provided the aggregate ofthe separate payments under this Section 5.4(a)(ii) shall not exceed an amount equal to twotimes the Executive’s annual
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Base Salary in effect as of the date of such termination or for a period in excess oftwenty-four (24) months following any such termination.               (iii) an amount equal to the most recent Annual Bonus received by Executive for anyfiscal year ended prior to the date of such termination (determined without regard to anyperformance goals), payable in a lump sum within thirty (30) days following such terminationof employment; provided further, that if such termination or resignation occurs withinthirty (30) days prior to the calendar year end, the payment, without interest, of theamount paid for a termination by the Company without Cause shall be paid no earlier thanJanuary 1 of the next year; and               (iv) Executive and Executive’s dependents shall be entitled to continue to participatein the Company’s welfare benefit plans and insurance programs on the same terms as similarlysituated active employees for a period of twenty-four months from the termination date.Following the expiration of such period, Executive and/or Executive’s dependents shall beentitled to any continuation of benefits as are provided under such benefit plans by theCompany or as are required to be provided in accordance with applicable law.               (b) If Executive’s employment hereunder is terminated by the Executive for Good Reason, solong as Executive has not breached any of the terms contained in Section 4, Executive shall beentitled to the benefits provided in Section 5.4(a), except the severance benefit specified inSection 5.4(a)(ii) (the “***Regular Severance Benefit***”) shall be payable in a lump sum (the “***PermittedLump Sum Benefit***”) to the extent it is (1) treated as a short-term deferral within the meaning ofTreas. Regs. §1.409A-1(b)(4), or (2) does not exceed the separation pay limit under Treas. Regs.§1.409A-1(b)(9)(iii)(A) (two times the lesser of (A) the sum of Executive’s annualized compensationbased on Executive’s annual Base Salary for the calendar year preceding the calendar year in whichtermination occurs (adjusted for any increase during that year that was expected to continueindefinitely if Executive’s employment had not been terminated), or (B) the maximum amount that maybe taken into account under a qualified plan pursuant to Code Section 401(a)(17) for the year inwhich such termination occurs), as described in Section 5.4(a)(ii). The Permitted Lump Sum Benefitshall be payable within thirty (30) days following such termination of employment; providedfurther, that if such termination or resignation occurs within thirty (30) days prior to thecalendar year end, the payment, without interest, of the Permitted Lump Sum Benefit paid for atermination by Executive for Good Reason shall be paid no earlier than January 1 of the next yearand any remaining amount shall be payable in installments in accordance with the Regular SeveranceBenefit provisions of Section 5.4(a)(ii).               (c) Any outstanding stock options granted to Executive shall be vested and/or exercisable forthe period through the date of such termination of employment, and shall remain exercisable, inaccordance with the terms contained in the plan and the agreement pursuant to which such optionawards were granted. Any outstanding Equity Award (other than stock options) with time basedvesting provisions granted to Executive shall be vested on a prorata basis based on the percentagedetermined by dividing (i) the number of days from and including the grant date of such EquityAward through the termination date of Executive’s employment, by (ii) the number of days from thegrant date of such Equity Award to the full
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vesting date of such Equity Awards. Any Equity Awards with performance based vestingprovisions shall remain outstanding through the remainder of the applicable performance period(without regard to any continued employment requirement) and if or to the extent the performanceprovisions are attained shall become vested without regard to any continued employment requirementon a prorata basis based upon the percentage determined by dividing (i) the number of days from andincluding the grant date of such Equity Award through the termination date of Executive’semployment, by (ii) the number of days from the grant date to the end of the applicable performanceperiod without regard to any continued employment requirement.               (d) For purposes of the calculation of Executive’s benefits under any supplemental definedbenefit plan in which Executive participates, Executive shall be credited with one additional yearof service as a result of termination pursuant to this Section 5.4.               (e) “***GoodReason***” means and shall be deemed to exist if, without the prior written consent of Executive, (i) Executive suffers a significant reduction in duties,responsibilities or effective authority associated with Executive’s titles andpositions as set forth and described in this Agreement or is assigned any duties orresponsibilities inconsistent in any material respect therewith (other than in connectionwith a termination for Cause); (ii) the Company fails to pay Executive any amounts orprovide any benefits required to be paid or provided under this Agreement or is otherwisein material breach of this Agreement; (iii) the Company adversely changesExecutive’s titles or reporting requirements; (iv) Executive’s compensation(other than Base Salary, which is governed by Section 3.1) or benefits provided forhereunder are decreased other than as part of reductions affecting the Company’sexecutives generally; (v) without the approval of Executive, the Board authorizes orotherwise directs the exhibition at any theatres owned or managed by the Company or itsSubsidiaries films that are either not rated or rated NC-17, “X” or other ratingmore restrictive than an “R” rating by The Motion Picture Association of Americaor any successor industry organization that regularly publishes film ratings or the sale ofalcoholic beverages to patrons at any theatres owned or managed by the Company or itsSubsidiaries; or (vi) the Company transfers Executive’s primary workplace from theCompany’s headquarters in Dallas/Plano, Texas area. No termination by Executive shall befor “Good Reason” unless written notice of such termination setting forth in particularthe event(s) constituting Good Reason is delivered to the Company within thirty (30) daysfollowing the date on which the event constituting Good Reason occurs and the Company failsto cure or remedy the event(s) identified in the notice within fifteen (15) days afterreceipt of such notice; provided, however, violations of (v) above may not be cured by theCompany, and Executive’s termination for Good Reason upon such violation shall be finaland binding.          5.5 Termination During a Change of Control. Notwithstanding Section 5.4, if within oneyear after a Change of Control (as defined below), executive’s employment is terminated by theCompany (other than for Disability, death or Cause) or Executive resigns for Good Reason, Executiveshall receive the payments and benefits set forth in this Section 5.5:               (a) Executive’s Accrued Employment Entitlements; plus               (b) An amount (the “***Section 5.5 Termination Amount***”) in addition to any other cashcompensation beyond that provided in (a) above, which amount shall be equal to
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the sum of two times Executive’s annual Base Salary; plus an amount equal to one and one half times the most recent Annual Bonus received by Executive for any fiscal year ended prior to the date of such termination (determined without regard to any performance goals), payable in a lump sum within thirty (30) days following such termination of employment provided further, that if such termination or resignationoccurs within thirty (30) days prior to the calendar year end, the payment, without interest, the amount shall be paid no earlier than January 1 of the next year; and               (c) Executive and Executive’s dependents shall be entitled to continue to participate in theCompany’s, a successor’s or acquiror’s welfare benefit plans and insurance programs on the sameterms as similarly situated active employees for a period of thirty (30) months from thetermination date. Following the expiration of such thirty (30) month period, Executive and/orExecutive’s dependents shall be entitled to any continuation of benefits as are provided under suchbenefit plans by the Company or as are required to be provided in accordance with applicable law.               (d) Any outstanding Equity Awards granted to Executive shall be fully vested and/orexercisable as of the date of such termination of employment and shall remain exercisable, in eachcase, in accordance with the terms contained in the plan and the agreement pursuant to which suchcompensation awards were granted, but in no event shall Executive’s rights under any such EquityAwards be less favorable than the terms applicable to a Sale of the Company or other change incontrol contained in the plan and the agreement pursuant to which such Equity Awards were granted.               (e) For purposes of the calculation of Executive’s benefits under any supplemental definedbenefit plan in which Executive participates, Executive shall be credited with one additional yearof service as a result of termination pursuant to this Section 5.5.               (f) A “***Change of Control***” shall be deemed to have occurred upon (i) the date that (A) anyindividual, entity or group (within the meaning both of Section 1.409A-3(i)(5)(vi)(D) of theTreasury Regulations and of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, asamended (the “***Exchange Act***”), other than Madison Dearborn Capital Partners or any entity ororganization controlled by Madison Dearborn Capital Partners (collectively, the “***MDP Entities***”) orthe Mitchell Family (as defined below), acquires (or has acquired during the 12-month period endingon the date of the most recent acquisition by such individual, entity or group), beneficialownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty percent(30%) or more of the total combined voting power of the voting securities of the Company entitledto vote generally in the election of directors (“***Voting Power***”); and (B) such beneficial ownership(as so defined) by such individual, entity or group of more than thirty percent (30%) of the VotingPower then exceeds the combined beneficial ownership (as so defined) of Voting Power of the MDPEntities and the Mitchell Family, (ii) a majority of the members of the Company’s Board ofDirectors shall not be Continuing Directors (as defined below) or (iii) the sale of all orsubstantially all of the Company’s assets.               (g) “Continuing Director” shall mean with respect to any 12-month period, individuals that atthe beginning of such period constituted the Board of Directors of the
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 Company (together with anynew directors whose election by such board or whose nomination for election by the stockholders ofthe Company was approved by a vote of at least a majority of the directors of the Company thenstill in office who were either directors at the beginning of such period or whose election ornomination was previously so approved).               (h) “Mitchell Family” shall mean (a) Lee Roy or Tandy Mitchell, or the estate of Lee RoyMitchell or Tandy Mitchell and (b) any trust or other arrangement for the benefit of a Mitchell.          5.6 General Release. Except where the termination is the result of Executive’s deathand notwithstanding the foregoing, no payment shall be made by the Company to Executive under thisSection 5 unless otherwise required by state, local or federal law, until Executive executes ageneral release of all claims in a form reasonably approved by the Company. The terms of any suchgeneral release will not, without the written consent of the Executive, terminate any continuingpayment or benefit obligations hereunder by the Company to the Executive. Notwithstanding theforegoing, if the Company fails to deliver a form of general release to the Executive by theforty-fifth (45th) day following the date of termination, the Executive will be deemed to havesatisfied the condition of this Section 5.6(a) without being required to execute a general release.          5.7 Office Support. Upon the termination of Executive’s employment hereunder for anyreason except for Cause, the Company shall make available to Executive, at the Company’s expense,an office and support services, (including, without limitation, telephone, telefax and internetaccess), at the Company’s election, either at the Company’s main office or at another suitableoffice space in the Dallas/Plano area, for a period not to exceed three (3) months following thedate of such termination.     6. Arbitration.          6.1 General. Any dispute, controversy or claim arising out of or relating to thisAgreement, the breach hereof or the coverage or enforceability of this arbitration provision shallbe settled by arbitration in Dallas, Texas (or such other location as the Company and Executive maymutually agree), conducted in accordance with the Commercial Arbitration Rules of the AmericanArbitration Association, as such rules are in effect in Dallas/Fort Worth, Texas on the date ofdelivery of demand for arbitration. The arbitration of any such issue, including the determinationof the amount of any damages suffered by either party hereto by reason of the acts or omissions ofthe other, shall be to the exclusion of any court of law. Notwithstanding the foregoing, eitherparty hereto may seek any equitable remedy in a court to enforce the provisions of this Agreement,including but not limited to an action for injunctive relief or attachment, without waiving theright to arbitration.          6.2 Procedure.               (a) Either party may demand such arbitration by giving notice of that demand to the otherparty. The party demanding such arbitration is referred to herein as the “***Demanding Party***,” andthe party adverse to the Demanding Party is referred to herein as the
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“***Responding Party***.” Thenotice shall state (x) the matter in controversy, and (y) the name of the arbitrator selected bythe party giving the notice.               (b) Not more than fifteen (15) days after such notice is given, the Responding Party shallgive notice to the Demanding Party of the name of the arbitrator selected by the Responding Party.If the Responding Party shall fail to timely give such notice, the arbitrator that the RespondingParty was entitled to select shall be named by the Arbitration Committee of the AmericanArbitration Association. Not more than fifteen (15) days after the second arbitrator is so named;the two arbitrators shall select a third arbitrator. If the twoarbitrators shall fail to timely select a third arbitrator, the third arbitrator shall benamed by the Arbitration Committee of the American Arbitration Association.               (c) The dispute shall be arbitrated at a hearing that shall be concluded within ten daysimmediately following the date the dispute is submitted to arbitration unless a majority of thearbitrators shall elect to extend the period of arbitration. Any award made by a majority of thearbitrators (x) shall be made within ten days following the conclusion of the arbitration hearing,(y) shall be conclusive and binding on the parties, and (z) may be made the subject of a judgmentof any court having jurisdiction.               (d) Any amount to which Executive is entitled under this Agreement (including any disputedamount) which is not paid when due shall bear interest from the date due but not paid at a rateequal to the lesser of eight percent (8%) per annum and the maximum lawful rate.          6.3 Costs and Expenses. All administrative and arbitration fees, costs and expensesshall be borne by the Company.     7. Indemnification. To the fullest extent permitted by the indemnification provisionsof the certificate of incorporation and bylaws of the Company in effect as of the date of thisAgreement and the indemnification provisions of the corporation statute of the jurisdiction of theCompany’s incorporation in effect from time to time (collectively, the “***IndemnificationProvisions***”), and in each case subject to the conditions thereof, the Company shall (i) indemnifyExecutive, as a director and/or officer of the Company or a subsidiary of the company or a trusteeor fiduciary of an employee benefit plan of the Company or a subsidiary of the Company, or, ifExecutive shall be serving in such capacity at the Company’s written request, as a director orofficer of any other corporation (other than a subsidiary of the company) or as a trustee orfiduciary of an employee benefit plan not sponsored by the Company or a subsidiary of the Company,against all liabilities and reasonable expenses that may be incurred by Executive in anythreatened, pending, or completed action, suit or proceeding, whether civil, criminal oradministrative, or investigative and whether formal or informal (collectively, “Claims”), becauseExecutive is or was a director or officer of the Company, a director or officer of such othercorporation or a trustee or fiduciary of such employee benefit plan, and against which Executivemay be indemnified by the Company, and (ii) pay for or reimburse within twenty (20) days afterrequest by Executive of the reasonable expenses incurred from time to time by Executive in thedefense of any proceeding to which Executive is a party because Executive is or was a director orofficer of the Company, a director or officer of such other corporation or a trustee or fiduciaryof such employee benefit plan. The Company shall have the right to defend Executive against a
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Claim with counsel of its choice reasonably acceptable to Executive so long as (i) the Claiminvolves primarily money damages, (ii) the Company conducts the defense of the Claim actively anddiligently and (iii) there are no conflicts of such counsel representing both the Company and theExecutive. So long as the Company is conducting the defense of the Claim, (i) Executive may retainseparate co-counsel at his sole cost and expense and participate in the defense of the Claim, (ii)the Company shall not consent to the entry of any judgment or enter into any settlement withrespect to the Claim, nor take any voluntary action prejudicial to the determination of the Claim,without the prior written consent of the Executive, such consent not to be unreasonably withheldand (iii) the Company will not consent to the entry of any judgment or enter into any settlement with respect to the Claim unless a written agreement from theparty asserting the Claim is obtained releasing the Executive from all liability thereunder. Therights of Executive under the Indemnification Provisions and this Section 7 shall survive thetermination of the employment of Executive by the Company.     8. Assignment. This Agreement shall be binding upon and inure to the benefit of theheirs and representatives of Executive and the assigns and successors of the Company, but neitherthis Agreement nor any rights or obligations hereunder shall be assignable or otherwise subject tohypothecation by Executive (except by will or by operation of the laws of intestate succession) orby the Company, except that the Company may assign this Agreement to any successor (whether bymerger, purchase or otherwise) to all or substantially all of the stock, assets or businesses ofthe Company, if such successor expressly agrees to assume the obligations of the Company hereunder.     9. Remedies. Executive acknowledges that the services Executive is to render underthis Agreement are of a unique and special nature, the loss of which cannot reasonably oradequately be compensated for in monetary damages, and that irreparable injury and damage willresult to the Company and its Subsidiaries in the event of any default or breach of this Agreementby Executive. The parties agree and acknowledge that the breach by Executive of any of the termsof this Agreement will cause irreparable damage to the Company and its affiliates, and upon anysuch breach, the Company shall be entitled to injunctive relief, specific performance, or otherequitable relief (without posting a bond or other security); provided, however, that this shall inno way limit any other remedies which the Company and its affiliates may have (including, withoutlimitations, the right to seek monetary damages).     10. Survival. The provisions of Sections 4 through 20 shall survive the expiration orearlier termination of the Term.     11. Taxes. All payments to Executive under this Agreement shall be reduced by allapplicable withholding required by Federal, state or local law.     12. No Obligation to Mitigate; No Rights of Offset.          12.1 No Obligation to Mitigate. Executive shall not be required to mitigate theamount of any payment or other benefit required to be paid to Executive pursuant to this Agreement,whether by seeking other employment or otherwise, nor shall the amount of any such payment or otherbenefit be reduced on account of any compensation earned by Executive as a result of employment byanother person; provided that Executive and Executive’s
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dependents shall not be entitled tocontinue to participate in the welfare benefit plans of the Company and its Subsidiaries ifExecutive is covered by the welfare benefit plans of another employer.          12.2 No Rights of Offset. The Company’s obligation to make the payments provided forin this Agreement and otherwise to perform its obligations hereunder shall not be affected by anyset-off, counterclaim, recoupment, defense or other claim, right or action which the Company mayhave against Executive or others.     13. Notices. Any notice or other communications relating to this Agreement shall bein writing and delivered personally or mailed by certified mail, return receipt requested, or sentby overnight courier, to the party concerned at the address set forth below:        If to Company: 3900 Dallas Parkway, Suite 500