Exhibit 10.8(m)
EMPLOYMENT AGREEMENT
▇▇▇▇▇ CORPORATION (the "Company") and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("Executive") agree to
enter into this EMPLOYMENT AGREEMENT dated as of September 21, 1998, as follows:
1. Employment.
The Company hereby agrees to employ Executive, and Executive hereby agrees to be
employed by the Company, upon the terms and subject to the conditions set forth
in this Agreement.
2. Employment Term.
The period of Executive's employment under this Agreement shall begin as of
September 21, 1998 (the "Effective Date") and shall continue until terminated in
accordance with Section 5 below (the "Employment Term").
3. Duties and Responsibilities.
(a) The Company will employ Executive as its Chief Financial Officer. In
such capacity, Executive shall perform the customary duties and have
the customary responsibilities of such position and such other duties
as may be assigned to Executive from time to time by the Company's
Chief Executive Officer or by the Company's Board of Directors (the
"Board").
(b) Executive agrees to faithfully serve the Company, devote his full
working time, attention and energies to the business of the Company its
subsidiaries and affiliated entities, and perform the duties under this
Agreement to the best of his abilities. Executive may perform services
without direct compensation therefor in connection with the management
of personal investments or in connection with charitable or civic
organizations.
(c) Executive agrees (i) to comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) to comply with the
Company's Policy of Business Conduct; and (iii) not to engage in any
other business or employment without the written consent of the Company
except as otherwise specifically provided herein.
4. Compensation and Benefits.
(a) Signing Bonus. The Company shall pay the Executive a signing bonus
("Signing Bonus") in the amount of $50,000 as soon as practicable
following the execution of this Agreement, but in no event sooner than
seven (7) days thereafter. In the event that the Executive's employment
with the Company is either terminated by the Company for Cause pursuant
to Section 5(c) or by the Executive pursuant to Section 5(e) for other
than Good Reason prior to September 21, 1999, the Signing Bonus shall
be repaid by the Executive to the Company.
(b) Base Salary. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of $300,000 per year or such
higher rate as may be determined from time to time by the Board ("Base
Salary"). Such Base Salary shall be paid in accordance with the
Company's standard payroll practice for senior executives.
(c) Annual Incentive Bonus. During the Employment Term, the Company will be
eligible for an annual incentive bonus in such amount as may be
determined by the Board, provided that Executive's target incentive
bonus for 1998 will be $220,000 and the minimum bonus payable to
Executive for 1998 will be at least $110,000. The actual amount of the
bonus will be calculated based on the Company's financial performance
and Executive's achievement of pre-determined goals.
(d) Initial Stock Option Grant. Executive will be granted options to
purchase 50,000 shares of ▇▇▇▇▇ common stock pursuant to the ▇▇▇▇▇
Stock Option Plan. During the Employment Term, Executive also will be
considered for the grant of additional stock options from year-to-year
as determined by the Board.
(e) Expense Reimbursement. The Company shall promptly reimburse Executive
for the ordinary and necessary business expenses incurred by Executive
in the performance of the duties under this Agreement in accordance
with the Company's customary practices applicable to senior executives,
provided that such expenses are incurred and accounted for in
accordance with the Company's policy.
(f) Other Benefit Plans, Fringe Benefits and Vacations. Executive shall be
eligible to participate in or receive benefits under any pension plan,
profit sharing plan, 401(k) plan, non-qualified deferred compensation
plan, supplemental executive retirement plan, medical and dental
benefits plan, life insurance plan, short-term and long-term disability
plans, incentive compensation plans, vacations, or any other fringe
benefit plan, generally made available by the Company to senior
executives. Except as otherwise provided in this Agreement, any such
participation shall be in accordance with the provisions of such plans
and nothing contained in this Agreement is intended to, or shall be
deemed to, affect adversely any of Executive's rights as a participant
under any such plans. Nothing herein shall prevent the Board from (i)
paying a bonus to Executive under any incentive plan which it adopts
and in which the other executives participate or (ii) modifying or
discontinuing any benefit plan on a consistent and non-discriminatory
basis applicable to all such executives.
(g) New York City Apartment. The Company will provide Executive with an
apartment located near the Company's principal place of business in New
York City selected by mutual agreement of the parties for the
Executive's sole use during the Employment Term.
5. Termination of Employment.
Executive's employment under this Agreement may be terminated under the
following circumstances:
(a) Death. Executive's employment shall terminate upon Executive's death.
(b) Total Disability. The Company may terminate Executive's upon his
becoming "Totally Disabled". For purposes of this Agreement, Executive
shall be "Totally Disabled" if he is physically or mentally
incapacitated so as to render him incapable of performing his usual and
customary duties under this Agreement. Executive's receipt of
disability benefits under the Company's long-term disability plan or
receipt of Social Security disability benefits shall be deemed
conclusive evidence of Total Disability for purpose of this Agreement;
provided, however, that in the absence of Executive's receipt of such
long-term disability benefits or Social Security benefits, the
Board may, in its reasonable discretion (but based upon appropriate
medical evidence), determine that Executive is Totally Disabled. (c)
Termination by the Company for Cause. The Company may terminate
Executive's employment for "Cause". Such termination shall be effective
as of the date specified in the written Notice of Termination provided
to Executive.
(i) Termination of employment by the Company for Cause shall
be deemed to have occurred only if such termination directly
results from: (A) an act or acts of dishonesty on Executive's
part constituting a felony; (B) Executive's willful and
continued failure to devote the time, attention, and effort
necessary to substantially perform his duties as an executive
officer of the Company in a manner consistent with Executive's
past performance (other than any such failure resulting from
Executive's incapacity due to physical or mental illness),
after a demand for substantial performance is delivered to
Executive by the Board which specifically identifies the
manner in which the Board believes that Executive has not
substantially performed his duties and Executive is given a
reasonable time after such demand substantially to perform his
duties; (C) gross misconduct or gross negligence in connection
with the business of the Company or an affiliate which has
substantial effect on the Company or the affiliate; or (D) a
material breach of any of the covenants set forth in Section 7
hereof.
(ii) Executive's employment shall in no event be considered to
have been terminated by the Company for Cause if the act or
failure to act upon which such termination is based: (A) was
done or omitted to be done as a result of bad judgment or
negligence on Executive's part, or without intent of gaining
therefrom directly or indirectly a profit to which Executive
was not legally entitled, or as a result of Executive's good
faith belief that such act or failure to act, was, and is,
not opposed to the interests of the Company; or (B) is an act
or failure to act in respect of which Executive meets the
applicable standard of conduct prescribed for indemnification
or reimbursement or payment of expenses under the By-laws of
the Company or the laws of the state of its incorporation or
the liability insurance covering directors and officers of
the Company, in each case as in effect at the time of such
act or failure to act.
(iii) Any determination of Cause under this Agreement shall be made
by resolution duly adopted by the affirmative vote of not
less than two-thirds of the entire membership of the Board at
a meeting of the Board called and held for the purpose (after
reasonable notice to Executive and an opportunity for
Executive, together with Executive's counsel, to be heard
before the Board), finding that in the good faith opinion of
the Board that Executive was guilty of conduct set forth
above in clause (i) of this Section 5(c) and specifying the
particulars thereof in detail.
(d) Termination by the Company without Cause. The Company may terminate
Executive's employment under this Agreement without Cause at any time
after providing Notice of Termination to Executive.
(e) Termination by Executive. Executive may terminate his employment under
this Agreement at any time after providing Notice of Termination to the
Company. Such Notice shall state whether the Executive's termination is
for "Good Reason". Termination of employment by Executive for Good
Reason shall be deemed to have occurred, if Executive provides the
Notice of Termination within 60 days after the occurrence of any of the
following:
(i) A change in Executive's responsibilities, status, title, or
position, which, in Executive's reasonable judgment,
represents a diminution of Executive's responsibilities,
status, title, or position offices, or any removal of
Executive from, or any failure to re-elect Executive to, any
of such titles, offices, or positions, provided that this
clause shall not apply if -------- Executive's employment is
terminated as a result of: (A) Executive's death, (B)
Executive's Total Disability in accordance with Section 5(c),
(C) Cause in accordance with Section 5(d), or (D) Executive's
voluntary termination in accordance with this Section 5(e)
other than for Good Reason.
(ii) A reduction by the Company in Executive's Base Salary.
(iii) The failure of the Company substantially to maintain and to
continue Executive's participation in the Company's benefit
plans (other than those plans or improvements that have
expired thereafter in accordance with their original terms),
or the taking of any action which would materially reduce
Executive's benefits under any of such plans or deprive
Executive of any material fringe benefit enjoyed by him.
(iv) The failure by the Company to pay any material amount of
current compensation owing to Executive, or any material
amount of compensation deferred under any plan, agreement or
arrangement of or with the Company owing to Executive, within
20 days after the Executive makes written demand for such
amount.
(v) The failure by the Company to obtain an assumption of the
obligations of the Company under this Agreement by any
successor to the Company.
(vi) Any purported termination of Executive's employment which
is not effected pursuant to a Notice of Termination, and for
purposes of this Agreement, no such purported termination
shall be effective.
(vii) Any "Change in Control" of the Company as defined in
Appendix A to this Agreement.
(f) Notice of Termination. Any termination of Executive's employment by the
Company or by Executive (other by reason of Executive's death) shall be
communicated by written Notice of Termination to the other party in
accordance with Section 16 below. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice in writing which shall
indicate the specific termination provision in this Agreement relied
upon to terminate Executive's employment and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated.
(g) Termination Date. Termination Date means (i) if Executive's employment
is terminated because of his death, the date of death, or (ii) if
employment is terminated for any other reason, the date specified in
the Notice of Termination.
6. Compensation Following Termination of Employment.
(a) Termination by Reason of Death. In the event that Executive's
employment is terminated by reason of Executive's death, the Company
shall pay the following amounts to Executive's beneficiary or estate:
(i) Earned But Unpaid Compensation. Any accrued but unpaid
Base Salary for services rendered to the date of death, any
accrued but unpaid expenses required to be reimbursed under
this Agreement, and any vacation accrued to the date of death.
(ii) Lump Sum Payment. An amount equal to the Base Salary (at
the rate in effect as of the date of Executive's death) which
would have been payable to Executive if Executive had
continued in employment until the last day of the month in
which Executive's death occurs. Such amount shall be paid in a
single lump sum cash payment within 30 days after Executive's
death.
(iii) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(e) hereof as determined and paid in
accordance with the terms of such plans, policies and
arrangements.
(b) Termination by Reason of Total Disability. In the event that
Executive's employment is terminated by reason of Executive's Total
Disability prior to the last day of the Employment Term as determined
in accordance with Section 5(b), the Company shall pay the following
amounts to Executive:
(i) Earned But Unpaid Compensation. Any accrued but unpaid
Base Salary for services rendered to Executive's Termination
Date, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the
Termination Date.
(ii) Continuation of Base Salary. An amount equal to (A) the
Base Salary (at the rate in effect as of the date of
Executive's Total Disability) which would have been payable to
Executive if Executive had continued in active employment
until the end of the 12-month period following Executive's
Termination Date, or such longer period as may be determined
by the Board, (B) reduced by amount of disability insurance
benefits payable to Executive during such period under any
employer-paid disability insurance plan. Payment shall be made
at the same time and in the same manner as such compensation
would have been paid if Executive had remained in active
employment until the end of such period.
(iii) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(e) hereof shall be determined and
paid in accordance with the terms of such plans, policies and
arrangements.
(c) Termination for Cause or Termination By Executive for Other Than Good
Reason. In the event that Executive's employment is terminated by the
Company for Cause pursuant to Section
5(c), or by Executive pursuant to Section 5(e) for other than Good
Reason, the Company shall pay the following amounts to Executive:
(i) Earned But Unpaid Compensation. Any accrued but unpaid
Base Salary for services rendered to Executive's Termination
Date, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to
Executive's Termination Date.
(ii) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(e) hereof shall be determined and
paid in accordance with the terms of such plans, policies and
arrangements.
(d) Termination By the Company Without Cause or Termination by Executive
for Good Reason. Executive shall be entitled to the benefits described
in this Section 6(d) in the event that Executive's employment is
terminated (i) by the Company pursuant to Section 5(d) for reasons
other than death, Total Disability, or Cause, or (ii) by Executive for
Good Reason pursuant to Section 5(e).
(i) Earned But Unpaid Compensation. The Company shall pay
Executive any accrued but unpaid Base Salary for services
rendered to Executive's Termination Date, any accrued but
unpaid expenses required to be reimbursed under this
Agreement, any vacation accrued to Executive's Termination
Date.
(ii) Lump Sum Payment. The Company shall pay Executive an
amount equal to the product of five times the sum of (A) and
(B) below:
(A) Executive's annualized Base Salary at
the highest annual rate in effect at any time prior
to the Termination Date; and
(B) the amount of annual bonus payable to
Executive for the calendar year ending immediately
prior to the calendar year in which the Termination
Date occurs.
This amount will be paid to Executive in a single
lump sum within 30 business days after the Termination Date.
(iii) Gross-Up Payment. In the event that any portion of the
benefits payable under this Section 6(d) and any other
payments and benefits under any other agreement with or plan
of the Company (in the aggregate, "Total Payments") constitute
an "excess parachute payment" within the meaning of Section
280G of the Internal Revenue Code (the "Code"), then the
Company shall pay Executive as promptly as practicable
following such determination an additional amount (the
"Gross-up Payment") calculated as described below to reimburse
Executive on an after tax basis for any excise tax imposed on
such payments under Section 4999 of the Code. The Gross-up
Payment shall equal the amount, if any, needed to ensure that
the net parachute payments (including the Gross-up Payment)
actually received by Executive after the imposition of federal
and state income and excise taxes (including any interest or
penalties imposed by the Internal Revenue Service), is equal
to the amount that
Executive would have netted after the imposition of federal
and state income taxes had the Total Payments not been
subject to the taxes imposed by Section 4999. For purposes of
this calculation, it shall be assumed that Executive's tax
rate will be the maximum marginal federal and state income
tax rate on earned income, with such maximum federal rate to
be computed with regard to Section 1(a) of the Code.
In the event that Executive and the Company are
unable to agree as to the amount of the Gross-up Payment, if
any, Executive shall select a law firm or accounting firm from
among those regularly consulted (during the 12-month period
immediately prior to the Termination Date) by the Company
regarding federal income tax matters and such law firm or
accounting firm shall determine the amount of Gross-up Payment
and such determination shall be final and binding upon
Executive and the Company.
(iv) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(e) hereof shall be determined and
paid in accordance with the terms of such plans, policies and
arrangements.
(v) No Mitigation Required. Executive shall not be required to
mitigate the amount of any compensation provided for under
this Section 6(d) by seeking other employment or otherwise,
nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by the
Employee as the result of employment with another employer
after the Termination Date or by any other compensation.
(vi) Non-Competition Covenant Does Not Apply. The restrictive
covenant prohibiting competitive activity set forth in Section
7(b) below shall not be applicable to Executive and shall be
null and void.
(e) No Other Benefits or Compensation. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee
benefit, or fringe benefit plan, applicable to Executive at the time of
Executive's termination or resignation of employment, Executive shall
have no right to receive any other compensation, or to participate in
any other plan, arrangement or benefit, with respect to future periods
after such termination or resignation.
7. Restrictive Covenants.
(a) Protected Information. Executive recognizes and acknowledges that he
will have access to various confidential or proprietary information
concerning the Company and entities affiliated with the Company of a
special and unique value which may include, without limitation, (i)
books and records relating to operations, finance, accounting, sales,
personnel and management, (ii) policies and matters relating
particularly to operations such as customer service requirements, costs
of providing service and equipment, operating costs and pricing
matters, and (iii) various trade or business secrets, including
business opportunities, marketing or business diversification plans,
business development and bidding techniques, methods and processes,
financial data and the like (collectively, the "Protected
Information"). Executive therefore covenants and agrees that he will
not at any time, either while employed by the Company or afterwards,
knowingly make any independent use of, or knowingly disclose to any
other person or organization (except as authorized by the Company) any
of the Protected Information.
(b) Competitive Activity. Executive covenants and agrees that at all times
during his period of employment with the Company, and for a period of
two (2) years after the date of termination of his employment by reason
of (i) termination by the Company for Cause in accordance with Section
5(c) above, or (ii) termination by the Executive in accordance with
Section 5(e) above for other than Good Reason, he will not, directly or
indirectly, engage in, assist, or have any active interest or
involvement whether as an employee, agent, consultant, creditor,
advisor, officer, director, stockholder (excluding holding of less than
1% of the stock of a public company), partner, proprietor or any type
of principal whatsoever, in any person, firm, or business entity which,
directly or indirectly, is engaged in the same business as that
conducted and carried on by the Company, without the Company's specific
written consent to do so.
(c) Return of Documents and Other Materials. Executive shall promptly
deliver to the Company, upon termination of his employment, or at any
other time as the Company may so request, all customer lists, leads and
refunds, data processing programs and documentation, employee
information, memoranda, notes, records, reports, tapes, manuals,
drawings, blueprints, programs, and any other documents and other
materials (and all copies thereof) relating to the Company's business
or that of its customers, and all property associated therewith, which
Executive may then possess or have under his control.
8. Enforcement of Covenants.
(a) Right to Injunction. Executive acknowledges that a breach of the
covenants set forth in Section 7 hereof will cause irreparable damage
to the Company with respect to which the Company's remedy at law for
damages will be inadequate. Therefore, in the event of breach or
anticipatory breach of the covenants set forth in this section by
Executive, Executive and the Company agree that the Company shall be
entitled to the following particular forms of relief, in addition to
remedies otherwise available to it at law or equity, injunctions, both
preliminary and permanent, enjoining or retraining such breach or
anticipatory breach and Executive hereby consents to the issuance
thereof forthwith and without bond by any court of competent
jurisdiction.
(b) Separability of Covenants. The covenants contained in Section 7 hereof
constitute a series of separate covenants, one for each applicable
State in the United States and the District of
Columbia, and one for each applicable foreign country. If in any
judicial proceeding, a court shall hold that any of the covenants set
forth in Section 7 exceed the time, geographic, or occupational
limitations permitted by applicable laws, Executive and the Company
agree that such provisions shall and are hereby reformed to the maximum
time, geographic, or occupational limitations permitted by such laws.
Further, in the event a court shall hold unenforceable any of the
separate covenants deemed included herein, then such unenforceable
covenant or covenants shall be deemed eliminated from the provisions of
this Agreement for the purpose of such proceeding to the extent
necessary to permit the remaining separate covenants to be enforced in
such proceeding. Executive and the Company further agree that the
covenants in Section 7 shall each be construed as a separate agreement
independent of any other provisions of this Agreement, and the
existence of any claim or cause of action by Executive against the
Company whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of any of the
covenants of Section 7.
9. Certain Proprietary Rights.
Executive agrees to and hereby does assign to the Company all his right, title
and interest in and to all inventions, whether or not patentable, which are made
or conceived solely or jointly by him:
(a) at any time during the term of his employment by the Company in an
executive, managerial, or planning capacity (including development and
sales); or
(b) during the course of or in connection with his duties during the
Employment Term; or
(c) with the use of time or materials of the Company.
Executive agrees to communicate to the Company or its representatives all facts
known to him concerning such inventions, to sign all rightful papers, make all
rightful oaths and generally to do everything possible to aid the Company in
obtaining and enforcing proper patent protection for all such inventions in all
countries and in vesting title to such inventions in all countries and in
vesting title to such inventions and patents in the Company. For the purpose of
this Agreement, the subject matter of any application for patent naming Employee
as a sole or joint inventor filed during the course of employment or within one
year subsequent to the termination thereof shall be deemed to be an invention
made or conceived by him during the course of his employment by the Company and
assignable to the Company hereunder, unless Executive establishes by a
preponderance of the evidence that such invention was made or conceived by him
subsequent to termination of his employment hereunder. At the Company's request
(during or after the term of this Agreement) and expense, Executive will
promptly execute a specific assignment of title to the Company, and perform any
other acts reasonably necessary to implement the foregoing assignment.
10. Withholding of Taxes.
The Company shall withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
11. Source of Payments.
All payments provided under this Agreement, other than payments made pursuant to
a plan which provides otherwise, shall be paid from the general funds of the
Company, and no special or separate
fund shall be established, and no other segregation of assets made, to assure
payment. Executive shall have no right, title or interest whatever in or to any
investments which the Company may make to aid the Company in meeting its
obligations under this Agreement. To the extent that any person acquires a right
to receive payments from the Company under this Agreement, such right shall be
no greater than the right of an unsecured creditor of the Company and its
affiliates.
12. Successor and Binding Agreement.
(a) Company Successor. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company, by
agreement in form and substance satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to
the same extent as the Company would be required to perform it if no
such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Executive to compensation
from the Company in the same amount and on the same terms as Executive
would be entitled to under this Agreement if Executive had given Notice
of Termination for Good Reason as of the day immediately before such
succession became effective and had specified that day in the notice of
termination. As used in this Agreement, "Company" shall mean the
Company as defined in the first sentence of this Agreement and any
successor to all or substantially all its business or assets or which
otherwise becomes bound by all the terms and provisions of this
Agreement, whether by the terms hereof, by operation of law or
otherwise.
(b) Executive's Successor. This Agreement shall inure to the benefit of and
be enforceable by Executive and his personal or legal representatives
and successors in interest under this Agreement.
(c) Facility of Payment. In the event of Executive's legal incapacity, the
Company may make any payments due under this Agreement to his legal
representative. In the event of Executive's death, the Company may make
any payment due under this Agreement to his surviving spouse or, if
none, to Executive's estate. Any payment made in accordance with this
provision fully discharges the obligation of the Company therefor.
13. Assignment by Executive.
The rights and benefits of Executive under this Agreement are personal to him
and no such right or benefit shall be subject to voluntary or involuntary
alienation, assignment or transfer; provided, however, that nothing in this
Section 13 shall preclude Executive from designating a beneficiary or
beneficiaries to receive any benefit payable on his death.
14. Entire Agreement; Amendment.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and the Company or any of its
subsidiaries or affiliated entities relating to the terms of Executive's
employment during the Employment Term. It may not be amended except by a written
agreement signed by both parties.
15. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
16. Notices.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company:
▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
To Executive:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
17. Miscellaneous.
(a) Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(b) Separability. If any term or provision of this Agreement is declared
illegal or unenforceable by any court of competent jurisdiction and
cannot be modified to be enforceable, such term or provision shall
immediately become null and void, leaving the remainder of this
Agreement in full force and effect.
(c) Headings. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
(d) Rules of Construction. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year set forth below.
▇▇▇▇▇ CORPORATION EXECUTIVE
By:/s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President and Chief Executive
Officer
Date: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Date:
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APPENDIX A
DEFINITION OF CHANGE IN CONTROL
The following definition of "Change in Control" shall apply for purposes of
Paragraph 5(e)(vii) of the Employment Agreement:
Change in Control. A "Change in Control" of the Company shall be deemed to have
occurred as of the first day any one or more of the following conditions shall
have been satisfied:
(a) Any person (other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company), becomes the beneficial owner, directly or indirectly, of
securities of the Company, representing more than twenty-five percent
(25%) of the combined voting power of the Company's then outstanding
securities;
(b) Individuals who, as of May 20, 1998, constitute the Board of Directors
of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to May 20, 1998, whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
person other than the Board; or
(c) The stockholders of the Company approve: (i) a plan of complete
liquidation of the Company; or (ii) an agreement for the sale or
disposition of all or substantially all the Company's assets; or (iii)
a merger, consolidation, or reorganization of the Company with or
involving any other corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least seventy-five percent (75%)
of the combined voting power of the voting securities of the Company
(or such surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.