AS A MEMBER OF
THE OFFICE OF THE CHAIRMAN HEREUNDER, THE COMPANY SHALL: (I) PAY KIRSCHBAUM
$100,000 PER YEAR; AND (II) GRANT TO KIRSCHBAUM STOCK OPTIONS TO PURCHASE 39,000
SHARES OF THE COMPANY'S COMMON STOCK WITH AN EXERCISE PRICE OF $17.16 AND AN
EXERCISE PERIOD OF 10 YEARS.
THE OPTIONS SHALL VEST IN EQUAL INCREMENTS ON THE
FIRST, SECOND AND THIRD ANNIVERSARY DATES OF THIS AGREEMENT.
KIRSCHBAUM SHALL
NOT BE ENTITLED TO RECEIVE ANY OTHER CASH FEES OR COMPENSATION FOR SERVICE ON
THE BOARD DURING THE TERM; PROVIDED, HOWEVER, THAT THIS SECTION 3(A)IS NOT
INTENDED TO LIMIT OR RESTRICT THE COMPANY FROM PROVIDING EQUITY INCENTIVE AWARDS
TO KIRSCHBAUM IN ACCORDANCE WITH IT STOCK INCENTIVE PLANS OR OTHERWISE AND
KIRSCHBAUM SHALL BE GRANTED OPTIONS/EQUITY COMPENSATION IN ACCORDANCE WITH
REGULAR GRANTS APPLICABLE TO NON-EMPLOYEE BOARD MEMBERS.
(B)
PAYMENT OF FEES.
THE COMPANY SHALL PAY THE FEES AND COMPENSATION
CONTEMPLATED IN SECTION 3(A) IN 12 MONTHLY INSTALLMENTS PER YEAR.
EACH
INSTALLMENT SHALL BE DUE AND PAID IN ARREARS BY THE FIRST DAY OF EACH MONTH
BEGINNING AUGUST 1, 2004.
4.
BUSINESS EXPENSES.
THE COMPANY SHALL REIMBURSE KIRSCHBAUM FOR
ALL REASONABLE AND NECESSARY OUT-OF-POCKET EXPENSES INCURRED OR PAID BY
KIRSCHBAUM IN CONNECTION WITH, OR RELATED TO, THE PERFORMANCE OF HIS SERVICE
UNDER THIS AGREEMENT.
KIRSCHBAUM SHALL SUBMIT TO THE COMPANY PERIODIC ITEMIZED
STATEMENTS, IN A FORM SATISFACTORY TO THE COMPANY, OF SUCH EXPENSES AS
INCURRED.
THE COMPANY SHALL PAY TO KIRSCHBAUM AMOUNTS SHOWN ON EACH STATEMENT
IN ACCORDANCE WITH ITS REGULAR PROCEDURES, BUT IN ANY EVENT WITHIN THIRTY (30)
DAYS AFTER RECEIPT THEREOF.
NOTWITHSTANDING THE FOREGOING, KIRSCHBAUM SHALL NOT
INCUR TOTAL EXPENSES IN EXCESS OF $5,000.00 PER MONTH WITHOUT THE PRIOR WRITTEN
APPROVAL OF THE COMPANY.
5.
INDEPENDENT CONTRACTOR.
THE PARTIES ACKNOWLEDGE AND CONFIRM THAT
KIRSCHBAUM IS AN INDEPENDENT CONTRACTOR TO THE COMPANY AND, AS SUCH, SHALL BE
RESPONSIBLE FOR THE PAYMENT OF ALL TAXES INCLUDING, BUT NOT LIMITED TO, SOCIAL
SECURITY AND INCOME TAX RELATING TO THE COMPENSATION PAID TO KIRSCHBAUM PURSUANT
TO THE TERMS OF THIS AGREEMENT.
NOTHING HEREIN CONTAINED SHALL BE CONSTRUED OR
DEEMED BY THE PARTIES HERETO AS CREATING OR HAVING CREATED ANY RELATIONSHIP OF
EMPLOYER AND EMPLOYEE, PRINCIPAL AND AGENT OR PARTNERSHIP OR JOINT VENTURE
BETWEEN KIRSCHBAUM AND THE COMPANY.
6.
CONFIDENTIAL INFORMATION.
KIRSCHBAUM RECOGNIZES AND ACKNOWLEDGES
THAT HE HAS HAD, AND WILL HAVE, DURING THE TERM, ACCESS TO CERTAIN CONFIDENTIAL
INFORMATION (AS DEFINED BELOW) OF THE COMPANY AND THAT SUCH INFORMATION
CONSTITUTES VALUABLE, SPECIAL AND UNIQUE PROPERTY OF THE COMPANY.
KIRSCHBAUM
AGREES THAT HE WILL NOT, DURING OR AFTER THE TERM, DISCLOSE ANY OF SUCH
CONFIDENTIAL INFORMATION TO ANY PERSON OR ENTITY WITHOUT THE CONSENT OF THE
COMPANY, EXCEPT AS NECESSARY OR APPROPRIATE IN THE ORDINARY COURSE OF PERFORMING
THE SERVICES HEREUNDER OR AS REQUIRED BY LAW, RULE OR REGULATION.
(A)
"CONFIDENTIAL INFORMATION" SHALL MEAN INFORMATION THAT IS NOT GENERALLY
KNOWN TO THE PUBLIC, WHICH IS USED, DEVELOPED OR OBTAINED BY THE COMPANY AND/OR
ANY OF ITS AFFILIATES, RELATING TO ITS OR THEIR BUSINESS AND THE BUSINESSES