PERCENT (50%) OF THE TOTAL COMBINED VOTING POWER OF THE COMPANY'S
SECURITIES OUTSTANDING IMMEDIATELY AFTER SUCH ACQUISITION; PROVIDED, THAT THE
TRANSACTION OR EVENT DESCRIBED IN THIS SUBSECTION CONSTITUTES A "CHANGE IN
CONTROL EVENT," AS DEFINED IN TREASURY REGULATION §1.409A-3(I)(5).
(F)
"COMMON STOCK" SHALL MEAN THE COMMON
STOCK, PAR VALUE $0.01 PER SHARE, OF THE COMPANY.
(G)
"COMPANY" SHALL HAVE THE MEANING SET FORTH
IN THE PREAMBLE HERETO.
(H)
"COMPENSATION COMMITTEE" MEANS THE
COMPENSATION COMMITTEE OF THE BOARD.
(I)
"DATE OF TERMINATION" SHALL MEAN (I) IF
THE EXECUTIVE'S EMPLOYMENT IS TERMINATED BY HIS DEATH, THE DATE OF HIS DEATH; OR
(II) IF THE EXECUTIVE'S EMPLOYMENT IS TERMINATED PURSUANT TO SECTION 4(A)(II) -
(VI) EITHER THE DATE INDICATED IN THE NOTICE OF TERMINATION OR THE DATE
SPECIFIED BY THE COMPANY PURSUANT TO SECTION 4(B), WHICHEVER IS EARLIER.
(J)
"DISABILITY" SHALL MEAN THE ABSENCE OF
THE EXECUTIVE FROM THE EXECUTIVE'S DUTIES TO THE COMPANY ON A FULL-TIME BASIS
FOR A TOTAL OF SIX MONTHS DURING ANY 12-MONTH PERIOD AS A RESULT OF INCAPACITY
DUE TO MENTAL OR PHYSICAL ILLNESS WHICH IS DETERMINED TO BE REASONABLY LIKELY TO
EXTEND BEYOND THE COMPLETION OF THE TERM AND WHICH DETERMINATION IS MADE BY A
PHYSICIAN SELECTED BY THE EXECUTIVE AND ACCEPTABLE TO THE COMPANY OR THE
COMPANY'S LEGAL REPRESENTATIVE (SUCH AGREEMENT AS TO ACCEPTABILITY NOT TO BE
WITHHELD UNREASONABLY).
A DISABILITY SHALL NOT BE "INCURRED" HEREUNDER UNTIL,
AT THE EARLIEST, THE LAST DAY OF THE SIXTH MONTH OF SUCH ABSENCE.
(K)
"EXECUTIVE" SHALL HAVE THE MEANING SET
FORTH IN THE PREAMBLE HERETO.
(L)
"EXECUTIVE BONUS PLAN" SHALL HAVE THE
MEANING SET FORTH IN SECTION 3(B).
2
(M)
"EXIT EVENT" SHALL MEAN ANY DISPOSITION OF
(A) A DEBT INTEREST IN THE COMPANY BY ANY OF THE PRINCIPAL STOCKHOLDERS, CARLYLE
PARTNERS IV, L.P. OR CARLYLE PARTNERS V, L.P. OR ANY OF THEIR RESPECTIVE
CO-INVESTMENT VEHICLES OR (B) AN EQUITY INTEREST IN THE COMPANY BY ANY OF THE
PRINCIPAL STOCKHOLDERS OR ANY OF THEIR AFFILIATES.
(N)
(I)
THE EXECUTIVE SHALL HAVE
"GOOD REASON" TO RESIGN HIS EMPLOYMENT DURING THE SIX MONTH PERIOD WHICH FOLLOWS
THE OCCURRENCE OF ANY OF THE FOLLOWING:
(A)
FAILURE OF THE COMPANY TO CONTINUE THE EXECUTIVE IN THE POSITION OF
PRESIDENT AND CHIEF EXECUTIVE OFFICER;
(B)
A MATERIAL DIMINUTION IN THE NATURE OR SCOPE OF THE EXECUTIVE'S
RESPONSIBILITIES, DUTIES OR AUTHORITY;
(C)
FAILURE OF THE PRINCIPAL STOCKHOLDERS TO SATISFY THEIR
REQUIREMENTS PURSUANT TO SECTION 2(C) OF THIS AGREEMENT;
(D)
THE COMPANY'S MATERIAL BREACH OF THIS AGREEMENT;
(E)
THE RELOCATION OF THE EXECUTIVE'S PRINCIPAL OFFICE, WITHOUT HIS
CONSENT, TO A LOCATION THAT IS IN EXCESS OF 100 MILES FROM HONOLULU, HAWAII; OR
(F)
FAILURE OF THE COMPANY TO MAKE ANY MATERIAL PAYMENT OR PROVIDE ANY
MATERIAL BENEFIT IN ACCORDANCE WITH THIS AGREEMENT.
(II)
THE EXECUTIVE MAY NOT RESIGN HIS
EMPLOYMENT FOR GOOD REASON UNLESS:
(A)
THE EXECUTIVE PROVIDED THE COMPANY WITH AT LEAST 30 DAYS PRIOR
WRITTEN NOTICE OF HIS INTENT TO RESIGN FOR GOOD REASON (WHICH NOTICE MUST BE
PROVIDED WITHIN 90 DAYS FOLLOWING