THE REASONS SET FORTH IN SECTION 5(A) ABOVE, PRIOR TO THE
PAYMENT DATE, SUCH PARTICIPANT SHALL BE INELIGIBLE TO RECEIVE HIS/HER BONUS OR
ANY OTHER BENEFIT UNDER THIS PROGRAM.
(C)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN
TO THE CONTRARY, A PARTICIPANT MAY BE REQUIRED TO EXECUTE AN AGREEMENT RELEASING
ANY AND ALL CLAIMS THE PARTICIPANT MAY HAVE AGAINST, AMONG OTHERS, THE DEBTORS
OR THEIR CURRENT OR FORMER SHAREHOLDERS, OFFICERS, EMPLOYEES OR DIRECTORS, EACH
OF THE FOREGOING IN THEIR CAPACITY AS SUCH, (THE "RELEASE") AND ANY APPLICABLE
REVOCATION PERIOD SET FORTH IN THE RELEASE MUST HAVE EXPIRED, BEFORE HE/SHE WILL
RECEIVE PAYMENT OF HIS/HER BONUS.
(D)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO
THE CONTRARY, THE OBLIGATION OF THE DEBTORS TO A PARTICIPANT TO MAKE ANY
PAYMENTS UNDER THIS PROGRAM SHALL CEASE AND THE PARTICIPANT AGREES TO PAY TO THE
DEBTORS, UPON WRITTEN DEMAND OF THE COMPANY, IN A SINGLE CASH, LUMP SUM, THE NET
AFTER-TAX AMOUNTS RECEIVED UNDER THIS PROGRAM, IF THE PARTICIPANT BREACHES ANY
RESTRICTIVE COVENANT THAT HE/SHE IS BOUND TO PURSUANT TO ANY AGREEMENT WITH ONE
OR MORE OF THE DEBTORS, OR AN EMPLOYEE BENEFIT PLAN OF ONE OR MORE OF THE
DEBTORS.
6.
DEFINITIONS.
For purposes of this
Program, the following definitions shall apply:
(A)
"BANKRUPTCY PLAN" SHALL MEAN THE PLAN OR
PLANS OF REORGANIZATION INVOLVING THE COMPANY IN CONNECTION WITH ITS CHAPTER 11
CASE.
(B)
"BOARD" SHALL MEAN THE BOARD OF DIRECTORS OF
THE COMPANY.
(C)
"CAUSE" SHALL HAVE THE MEANING SET FORTH IN
ANY EMPLOYMENT AGREEMENT A PARTICIPANT HAS ENTERED INTO WITH A DEBTOR; PROVIDED,
HOWEVER, THAT IF A PARTICIPANT IS NOT PARTY TO SUCH AN EMPLOYMENT AGREEMENT,
"CAUSE" SHALL MEAN: (I) A PARTICIPANT'S REFUSAL OR REPEATED FAILURE TO PERFORM
THE DUTIES ASSIGNED TO HIM OR HER; (II) ANY ACT BY THE PARTICIPANT THAT HAS THE
EFFECT OF INJURING THE REPUTATION OR BUSINESS OF THE DEBTOR FOR WHICH THE
PARTICIPANT IS EMPLOYED; (III) THE CONVICTION BY THE EMPLOYEE OF A FELONY;
(IV) ANY VIOLATION BY THE PARTICIPANT OF THE RULES, REGULATIONS OR POLICIES OF
THE DEBTOR FOR WHICH THE PARTICIPANT IS EMPLOYED; (V) THEFT BY THE PARTICIPANT;
OR (VI) COMMISSION BY THE PARTICIPANT OF AN ACT OF GROSS MISCONDUCT, FRAUD OR
EMBEZZLEMENT.
(D)
"CHANGE IN CONTROL" SHALL MEAN THE
OCCURRENCE OF ANY OF THE FOLLOWING EVENTS, WHETHER ON, BEFORE OR FOLLOWING THE
EMERGENCE DATE, IN EACH CASE PURSUANT TO THE TERMS OF A DEFINITIVE WRITTEN
AGREEMENT WITH ONE OR MORE OF THE DEBTORS ENTERED INTO ON OR PRIOR TO THE
EMERGENCE DATE:
(I)
CONSUMMATION OF AN ACQUISITION ON OR
AFTER THE EMERGENCE DATE BY ANY INDIVIDUAL, ENTITY OR GROUP (WITHIN THE MEANING
OF SECTION 13(D)(3) OR 14(D)(2) OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT") (A "PERSON")) OF BENEFICIAL OWNERSHIP (WITHIN THE
MEANING OF RULE 13D-3 PROMULGATED UNDER THE EXCHANGE ACT) OF 50% OR MORE OF
EITHER (A) THE THEN-OUTSTANDING SHARES OF COMMON STOCK OF THE COMPANY ISSUED
PURSUANT TO THE BANKRUPTCY PLAN (THE "OUTSTANDING COMPANY COMMON STOCK") OR
(B) THE COMBINED VOTING POWER