(B) OF SECTION 2 OF THIS AGREEMENT.
(B)
ON DECEMBER 15, 2005, THIS AGREEMENT WILL SUPERCEDE, WITHOUT PRIOR
ACTION OF THE COMPANY OR THE EXECUTIVE, THE PRIOR AGREEMENT AND THE CHANGE IN
CONTROL AGREEMENT BETWEEN NCE AND THE EXECUTIVE EFFECTIVE AUGUST 1, 1997 (THE
"CHANGE IN CONTROL AGREEMENT"), PROVIDED THAT THE EXECUTIVE IS EMPLOYED BY THE
COMPANY AS ITS CHAIRMAN OF THE BOARD IMMEDIATELY PRIOR TO DECEMBER 15, 2005.
(THE DATE THIS AGREEMENT SUPERCEDES THE PRIOR AGREEMENT AND THE CHANGE IN
CONTROL AGREEMENT IS HEREIN REFERRED TO AS THE "EFFECTIVE DATE").
ON THE
EFFECTIVE DATE, THE PRIOR AGREEMENT AND CHANGE IN CONTROL AGREEMENT SHALL BE
TERMINATED AND WITHOUT FURTHER EFFECT.
(C)
UNTIL THE EFFECTIVE DATE OCCURS, THE PRIOR AGREEMENT, AS AMENDED
BY PARAGRAPH (B) OF SECTION 2 HEREOF, SHALL REMAIN IN FULL FORCE AND EFFECT, AS
SHALL THE CHANGE IN CONTROL AGREEMENT.
(D)
IN THE EVENT THE EFFECTIVE DATE DOES NOT OCCUR BECAUSE THE
EXECUTIVE IS NOT EMPLOYED BY THE COMPANY AS CHAIRMAN OF THE BOARD IMMEDIATELY
PRIOR TO DECEMBER 15, 2005 (WHETHER BY REASON BY DEATH OR DISABILITY, OR AS A
RESULT OF A TERMINATION FOR CAUSE OR WITHOUT CAUSE OR FOR GOOD REASON OR WITHOUT
GOOD REASON UNDER THE PRIOR AGREEMENT OR OTHERWISE), THEN THE PROVISIONS OF THIS
AGREEMENT, OTHER THAN PARAGRAPH (A) OF THIS SECTION 1 AND PARAGRAPHS (A) AND (B)
OF SECTION 2, SHALL CEASE TO BE OF ANY FORCE AND EFFECT.
2.
Resignation; Retirement.
(A)
THE EXECUTIVE HEREBY SUBMITS, AND THE COMPANY HEREBY ACCEPTS, HIS
VOLUNTARY AND IRREVOCABLE RESIGNATION EFFECTIVE ON JULY 1, 2005 AS CHIEF
EXECUTIVE OFFICER OF THE COMPANY AND OF ANY AFFILIATE OF THE COMPANY.
(B)
SECTION 2(A) OF THE PRIOR AGREEMENT IS HEREBY AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
"(a)
During the Initial Period, the Executive shall serve as Chief
Executive Officer and President of the Company.
During the Second Period, the
Executive shall serve until July 1, 2005 as Chief Executive Officer of the
Company and Chairman of the Board of Directors of the Company ("Board") and
thereafter shall serve as Chairman of the Board.
The Executive shall serve in
each such case as an employee of the Company and with such duties and
responsibilities as are customarily assigned to such positions, and such other
duties and responsibilities not inconsistent therewith as may from time to time
be assigned to him by the Board.
The Executive shall be a member of the Board
on the first day of the Employment Period, and the Board shall propose the
Executive for re-election to the Board throughout the Employment Period."
2
The Executive hereby waives any right or claim that he might otherwise have to
terminate employment for Good Reason, or to receive any severance or other
payment or benefit, under the Prior Agreement or the Change in Control Agreement
as a result of his ceasing to serve as Chief Executive Officer of the Company or
of any affiliate of the Company effective July 1, 2005.
Except as set for