ENTITY, 50% OR MORE OF THE TOTAL VALUE OR VOTING
POWER OF WHICH IS OWNED, DIRECTLY OR INDIRECTLY, BY PARENT, (C) A PERSON, ENTITY
OR GROUP THAT OWNS, DIRECTLY OR INDIRECTLY, 50% OR MORE OF THE TOTAL VALUE OR
VOTING POWER OF ALL THE OUTSTANDING CAPITAL STOCK OF PARENT, OR (D) AN ENTITY,
AT LEAST 50% OF THE TOTAL VALUE OR VOTING POWER OF WHICH IS OWNED, DIRECTLY OR
INDIRECTLY, BY A PERSON, ENTITY OR GROUP DESCRIBED IN SUBPARAGRAPH (C) ABOVE.
IN ALL RESPECTS, THE DEFINITION OF "CHANGE IN CONTROL" SHALL BE INTERPRETED TO
COMPLY WITH SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND
THE PROVISIONS OF TREASURY NOTICE 2005-1, AND ANY SUCCESSOR STATUTE, REGULATION
AND GUIDANCE THERETO (PROVIDED, HOWEVER, THAT PARENT DOES NOT GUARANTEE ANY TAX
TREATMENT OF ANY PAYMENT OR BENEFIT IN THIS AGREEMENT).
(B)
THE RESTRICTED SHARES SHALL ALSO BE SUBJECT TO THE TERMS OF THE
AGREEMENT UNDERLYING THE RESTRICTED SHARES AND THE SHAREHOLDERS' AGREEMENT
ENTERED INTO BY PARENT AND THE HOLDERS OF THE OTHER SHARES OF SERIES A-1 COMMON
STOCK.
IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF SUCH AGREEMENTS AND
THE TERMS OF THIS AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL GOVERN.
3
5.
TERMINATION OF EMPLOYMENT.
THE EXECUTIVE'S EMPLOYMENT SHALL TERMINATE
UPON THE OCCURRENCE OF ANY OF THE FOLLOWING:
5.1
TERMINATION BY THE COMPANY FOR CAUSE.
AT THE ELECTION OF THE
COMPANY, FOR CAUSE.
FOR THE PURPOSES OF THIS SECTION 5.1, "CAUSE" FOR
TERMINATION SHALL BE DEEMED TO EXIST UPON THE OCCURRENCE OF ANY OF THE
FOLLOWING:
(A)
A WRITTEN FINDING BY THE BOARD MADE AFTER REASONABLE INVESTIGATION
THAT EXECUTIVE HAS ENGAGED IN DISHONESTY, GROSS NEGLIGENCE OR GROSS MISCONDUCT
THAT IS INJURIOUS TO THE COMPANY, AND NOTICE TO SUCH EXECUTIVE OF SUCH WRITTEN
FINDING;
(B)
EXECUTIVE'S CONVICTION OR ENTRY OF A PLEA OF NOLO CONTENDERE TO ANY
FELONY OR ANY CRIME INVOLVING MORAL TURPITUDE, FRAUD OR EMBEZZLEMENT OF COMPANY
PROPERTY; AND
(C)
A WRITTEN FINDING BY THE BOARD THAT EXECUTIVE HAS ENGAGED IN A
MATERIAL BREACH OF THIS AGREEMENT, AND THAT, AFTER WRITTEN NOTICE OF THE RIGHT
TO CURE WITHIN SIXTY (60) DAYS, HAS NOT CURED SUCH MATERIAL BREACH.
5.2
TERMINATION WITHOUT CAUSE.
AT THE ELECTION OF THE COMPANY,
WITHOUT CAUSE, AT ANY TIME, UPON THIRTY (30) DAYS WRITTEN NOTICE TO EXECUTIVE.
EXCEPT AS PROVIDED IN SECTION 3(A) HEREOF, ANY MATERIAL CHANGE IN THE DUTIES OR
REPORTING RESPONSIBILITIES OF EXECUTIVE SHALL BE TREATED, AT THE ELECTION OF
EXECUTIVE, AS A TERMINATION WITHOUT CAUSE.
5.3
Voluntary Termination.
At the election of the Executive, for any
reason, upon thirty (30) days notice to the Company.
6.
EFFECT OF TERMINATION.
6.1
TERMINATION FOR CAUSE OR AT THE ELECTION OF EXECUTIVE.
IN THE
EVENT THAT EXECUTIVE'S EMPLOYMENT IS TERMINATED FOR CAUSE PURSUANT TO SECTION
5.1 OR AT THE ELECTION OF THE EXECUTIVE PURSUANT TO SECTION 5.3, THE COMPANY
SHALL HAVE NO FURTHER OBLIGATIONS UNDER THIS AGREEMENT OTHER THAN TO PAY TO
EXECUTIVE THE BASE SALARY AND BENEFITS, INCLUDING PAYMENT FOR ACCRUED