to
accomplish these objectives.
The Executive previously entered into a letter agreement dated October 4, 1999,
as amended ("Prior Agreement") with the Company providing certain benefits upon
a change of control.
This Agreement supersedes the third paragraph of the Prior
Agreement.
ARTICLE I.
CERTAIN DEFINITIONS
As used in this Agreement, the terms specified below shall have the following
meanings:
1.1.
"ACCRUED OBLIGATIONS" MEANS, AS OF ANY DATE,
THE SUM OF EXECUTIVE'S (A) BASE SALARY THAT IS ACCRUED BUT NOT YET PAID AS OF
THE TERMINATION DATE, (B) BONUS EARNED BUT NOT YET PAID WITH RESPECT TO ANY
PERFORMANCE PERIOD ENDED PRIOR TO THE CHANGE OF CONTROL DATE, (C) ACCRUED BUT
UNPAID PAID VACATION OR PAID TIME OFF, AND (D) ANY OTHER AMOUNTS AND BENEFITS
WHICH ARE THEN DUE TO BE PAID OR PROVIDED TO EXECUTIVE BY THE COMPANY, BUT HAVE
NOT YET BEEN PAID OR PROVIDED.
1.2.
"AFFILIATE" MEANS ANY PERSON THAT DIRECTLY OR
INDIRECTLY CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, THE
COMPANY.
FOR PURPOSES OF THIS DEFINITION THE TERM "CONTROL" WITH RESPECT TO ANY
PERSON MEANS THE POWER TO DIRECT OR CAUSE THE DIRECTION OF MANAGEMENT OR
POLICIES OF SUCH PERSON, DIRECTLY OR INDIRECTLY, WHETHER THROUGH THE OWNERSHIP
OF VOTING SECURITIES, BY CONTRACT OR OTHERWISE.
1.3.
"AGREEMENT DATE" HAS THE MEANING DEFINED FOR
THAT TERM IN THE INTRODUCTION TO THIS AGREEMENT.
1.4.
"AGREEMENT TERM" MEANS THE PERIOD COMMENCING
ON THE AGREEMENT DATE AND CONTINUING THEREAFTER SO LONG AS EXECUTIVE IS EMPLOYED
BY THE COMPANY OR BY A SUCCESSOR TO THE COMPANY THAT ASSUMES THIS AGREEMENT
PURSUANT TO SECTION 9.2.
1.5.
"ARTICLE" MEANS AN ARTICLE OF THIS AGREEMENT.
1.6.
"BASE SALARY" HAS THE MEANING DEFINED FOR THAT
TERM IN SECTION 2.2(A).
1.7.
"BENEFICIAL OWNER" MEANS SUCH TERM AS DEFINED
IN RULE 13D-3 UNDER THE EXCHANGE ACT.
1.8.
"BENEFICIARY" HAS THE MEANING DEFINED FOR THAT
TERM IN SECTION 10.3.
1.9.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE
COMPANY, OR, FROM AND AFTER THE EFFECTIVE DATE OF A REORGANIZATION TRANSACTION,
THE BOARD OF DIRECTORS OF THE SURVIVING CORPORATION.
1.10.
"BONUS" HAS THE MEANING DEFINED FOR THAT TERM IN
SECTION 2.2(B).
1.11.
"CAUSE" MEANS ANY ONE OR MORE OF THE FOLLOWING:
(A)
EXECUTIVE'S WILLFUL VIOLATION OF ANY LAW OR
REGULATION APPLICABLE TO THE BUSINESS OF THE COMPANY;
(B)
EXECUTIVE'S CONVICTION OF OR PLEA OF NO
CONTEST TO ANY FELONY;
(C)
EXECUTIVE'S COMMISSION OF ANY WILLFUL ACT
INVOLVING MORAL TURPITUDE OR COMMON LAW FRAUD WHETHER OR NOT RELATED TO THE
BUSINESS OF THE COMPANY;
(D)
EXECUTIVE'S WILLFUL MISCONDUCT THAT IS
MATERIALLY INJURIOUS TO THE FINANCIAL CONDITION OR BUSINESS REPUTATION OF THE
COMPANY OR OTHERWISE IS MATERIALLY INJURIOUS TO THE COMPANY;
(E)
ANY ACT OF GROSS NEGLIGENCE IN EXECUTIVE'S
PERFORMANCE OF HIS DUTIES AS AN EMPLOYEE;
(F)
ANY VIOLATION BY EXECUTIVE OF THE
"BEHAVIORS AT WORK" PROVISIONS OF THE COMPANY'S EMPLOYEE MANUAL; AND
provided, however that an act or omission described in clause (e) or (f) shall
not constitute Cause unless the Company first gives Executive 30 days' advance