EMPLOYEE TO RETURN ANY CASH OR PROPERTY ACTUALLY REALIZED BY THE
KEY EMPLOYEE (DIRECTLY OR INDIRECTLY) IN RESPECT OF THE GRANT, IN EACH CASE
WHETHER OR NOT THE COMMITTEE HAS MADE A VESTING DETERMINATION UNDER SECTION 3 IN
RESPECT THEREOF BEFORE OR AFTER THE DATE THE KEY EMPLOYEE ENGAGED IN THE
DETRIMENTAL ACTIVITY OR BEFORE OR AFTER THE DATE OF TERMINATION AS DETERMINED OR
REDETERMINED UNDER SUBSECTION (A).
(D)
ALLEGATIONS OF ACTIVITY.
IF AN ALLEGATION OF
DETRIMENTAL ACTIVITY BY THE KEY EMPLOYEE IS MADE TO THE COMMITTEE, THEN THE
COMMITTEE MAY SUSPEND THE KEY EMPLOYEE'S RIGHTS IN RESPECT OF THE GRANT TO
PERMIT THE INVESTIGATION OF SUCH ALLEGATION.
(E)
DEFINITION OF "DETRIMENTAL ACTIVITY."
FOR
PURPOSES OF THIS AGREEMENT, "DETRIMENTAL ACTIVITY" MEANS ACTIVITY THAT IS
DETERMINED BY THE COMMITTEE IN ITS SOLE DISCRETION TO BE DETRIMENTAL TO THE
INTERESTS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, INCLUDING BUT NOT LIMITED
TO SITUATIONS WHERE THE KEY EMPLOYEE (I) DIVULGES TRADE SECRETS OF THE COMPANY,
PROPRIETARY DATA OR OTHER CONFIDENTIAL INFORMATION RELATING TO THE COMPANY OR TO
THE BUSINESS OF THE COMPANY OR ANY SUBSIDIARIES, (II) ENTERS INTO EMPLOYMENT
WITH A COMPETITOR UNDER CIRCUMSTANCES SUGGESTING THAT THE KEY EMPLOYEE WILL BE
USING UNIQUE OR SPECIAL KNOWLEDGE GAINED AS AN EMPLOYEE OF THE COMPANY TO
COMPETE WITH THE COMPANY, (III) USES INFORMATION OBTAINED DURING THE COURSE OF
HIS OR HER PRIOR EMPLOYMENT WITH THE COMPANY FOR HIS OR HER OWN PURPOSES, SUCH
AS FOR THE SOLICITATION OF BUSINESS AND
4
COMPETITION WITH THE COMPANY, (IV) IS DETERMINED TO HAVE ENGAGED (WHETHER OR NOT
PRIOR TO TERMINATION DUE TO RETIREMENT) IN EITHER GROSS MISCONDUCT OR CRIMINAL
ACTIVITY HARMFUL TO THE COMPANY, (V) TAKES ANY ACTION THAT HARMS THE BUSINESS
INTERESTS, REPUTATION OR GOODWILL OF THE COMPANY AND/OR ITS SUBSIDIARIES OR
(VII) FAILS TO COMPLY WITH LAWFUL INSTRUCTION OF THE BOARD AND IN ANY SUCH CASE
THE ACT OR FAILURE TO ACT SHALL HAVE BEEN DETERMINED BY THE BOARD TO BE
MATERIALLY HARMFUL TO THE COMPANY, FINANCIALLY OR OTHERWISE.
6.
CHANGE IN CONTROL.
IN THE EVENT OF A "CHANGE OF CONTROL" (AS DEFINED IN THE AWARDS PLAN)
(A)
IF THE CHANGE OF CONTROL OCCURS IN THE
FIRST YEAR OF THE RESTRICTED PERIOD, THE COMPANY SHALL ISSUE THE KEY EMPLOYEE
ONE SHARE OF COMMON STOCK FOR EACH RESTRICTED STOCK UNIT THAT COULD BECOME
VESTED, ASSUMING PERFORMANCE AT MAXIMUM LEVELS.
(B)
IF THE CHANGE OF CONTROL OCCURS IN THE
SECOND OR THIRD YEAR OF THE RESTRICTED PERIOD, THE COMPANY SHALL ISSUE THE KEY
EMPLOYEE ONE SHARE OF COMMON STOCK FOR EACH RESTRICTED STOCK UNIT THAT IS
ELIGIBLE TO BECOME VESTED BASED UPON ACTUAL PERFORMANCE IN THE FIRST YEAR OF THE
RESTRICTED PERIOD.
7.
TAX WITHHOLDING; REPURCHASE.
(A)
IT SHALL BE A CONDITION OF THE OBLIGATION
OF THE COMPANY TO ISSUE RESTRICTED STOCK UNITS TO THE KEY EMPLOYEE OR THE
BENEFICIARY, AND THE KEY EMPLOYEE AGREES, THAT THE KEY EMPLOYEE SHALL PAY TO THE
COMPANY, UPON ITS DEMAND, SUCH AMOUNT AS MAY BE REQUESTED BY THE COMPANY FOR