Employment Agreement - Countrywide Credit Industries Inc. and David S. Loeb
SECOND RESTATED EMPLOYMENT AGREEMENT
THIS RESTATED EMPLOYMENT AGREEMENT (the "Agreement") has been executed
as of March 26, 1996 by and between Countrywide Credit Industries, Inc., a
Delaware corporation ("Employer"), and David S. Loeb ("Officer").
W I T N E S S E T H:
WHEREAS, Officer currently holds the offices of Chairman of the Board
of Directors of Employer (the "Board") and President of Employer; and
WHEREAS, Employer desires to obtain the benefit of continued services
of Officer and Officer desires to continue to render services to Employer; and
WHEREAS, the Board has determined that it is in Employer's best
interest and that of its stockholders to recognize the substantial contribution
that Officer has made and is expected to continue to make to the Company's
business and to retain his services in the future; and
WHEREAS, Employer and Officer set forth the terms and conditions of
Officer's employment with Employer under an employment agreement entered into as
of March 1, 1991 (the "Original Agreement"); and
WHEREAS, Employer and Officer entered into Amendment No. 1 to Employment
Agreement as of November 5, 1992 ("Amendment No. 1"), entered into Amendment No.
2 to Employment Agreement as of November 10, 1992 ("Amendment No. 2") and
entered into a Restated Employment Agreement as of February 2, 1993 (the "First
Restated Agreement"); and
WHEREAS, Employer and Officer desire to set forth the continued terms
and conditions of Officer's employment with Employer under this Agreement;
WHEREAS, the effectiveness of this Agreement is subject to the approval
of Employer's stockholders of the provisions of Section 4(b) hereof and the
amendments to the 1993 Plan (as defined herein) as submitted to stockholders for
approval.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Term. Employer agrees to employ Officer and Officer agrees to serve
Employer, in accordance with the terms hereof, for a term beginning on the
Effective Date (as defined in Section 8(c) hereof) and ending on February 28,
2001, unless earlier terminated in accordance with the provisions hereof.
2. Specific Position; Duties and Responsibilities. Employer and Officer
hereby agree that, subject to the provisions of this Agreement, Employer will
employ Officer and Officer will serve Employer and its subsidiaries as Chairman
of the Board and President of Employer. Employer agrees that Officer's duties
hereunder shall be the usual and customary duties of the offices of Chairman of
the Board and President and such further duties consistent therewith as may be
designated from time to time by the Board, and shall not be inconsistent with
the provisions of the charter documents of Employer or applicable law. Officer
shall have such executive power and authority as shall reasonably be required to
enable him to discharge his duties in the offices which he may hold. All
compensation paid to Officer by Employer or any of its subsidiaries shall be
aggregated in determining whether Officer has received the benefits provided for
herein.
3. Scope of this Agreement and Outside Affiliations. During the term of
this Agreement, Officer shall devote his full business time and energy, except
as expressly provided below, to the business, affairs and interests of Employer
and its subsidiaries, and matters related thereto, and shall use his best
efforts and abilities to promote its interests. Officer agrees that he will
diligently endeavor to promote the business, affairs and interests of Employer
and its subsidiaries and perform services contemplated hereby, in accordance
with the policies established by the Board, which policies shall be consistent
with this Agreement. Officer agrees to serve without additional remuneration in
such senior executive capacity not below the rank of President for one or more
(direct or indirect) subsidiaries of Employer as the Board may from time to time
request, subject to appropriate authorization by the subsidiary or subsidiaries
involved and any limitation under applicable law. Officer's failure to discharge
an order or perform a function because Officer reasonably and in good faith
believes such would violate a law or regulation or be dishonest shall not be
deemed a breach by him of his obligations or duties pursuant to any of the
provisions of this Agreement, including without limitation pursuant to Section
5(c) hereof.
During the course of Officer's employment as a full-time officer
hereunder, Officer shall not, without the consent of the Board, compete,
directly or indirectly, with Employer in the businesses then conducted by
Employer.
Officer may serve as a director or in any other capacity of any
business enterprise, including an enterprise whose activities may involve or
relate to the business of Employer, provided that such service is expressly
approved by the Board. Officer may make and manage personal business investments
of his choice and serve in any capacity with any civic, educational or
charitable organization, or any governmental entity or trade association,
without seeking or obtaining approval by the Board, provided such activities and
services do not materially interfere or conflict with the performance of his
duties hereunder.
4. Compensation and Benefits.
(a) Base Salary. Employer shall pay to Officer a base salary in each fiscal
year of Employer (a "Fiscal Year") or portion thereof covered by this Agreement
at the annual rate of $1,300,000:
(b) Incentive Compensation. Employer shall pay to Officer for
each of the Fiscal Years ending in 1997 through 2001 an incentive compensation
award in the amount of the incentive compensation award paid to Officer in the
previous Fiscal Year, multiplied by a fraction (the "Performance Ratio") the
numerator of which is the earnings per share on a fully diluted basis of
Employer during such current Fiscal Year as reported in the audited Financial
Statements included in Employer's Annual Report on Form 10-K filed with the
Securities and Exchange Commission (the "EPS") and the denominator of which is
the EPS for the previous Fiscal Year (adjusted proportionately in the event
Employer (A) declares a stock dividend on its common stock, (B) subdivides its
outstanding common stock, (C) combines the outstanding shares of its capital
stock into a smaller number of common stocks or (D) issues any shares of its
capital stock in a reclassification of the common stock (including any such
reclassification in connection with a consolidation or merger in which Employer
is the continuing or surviving corporation)); provided, however, that the
Compensation Committee of the Board (the "Compensation Committee") may reduce
the amount of any incentive compensation award in the event there is a
substantial distortion in EPS for the Fiscal Year in respect of which the award
is being paid resulting from an acquisition, a divestiture, or a change in
accounting standards.
(c) Stock Options. Employer shall grant to Officer a stock
option in respect of 1,000,000 shares of the Employer's common stock on the
first business day following the Effective Date, such option to become
exercisable as to 333,333, 333,333 and 333,334 shares on each of the first three
(3) anniversaries of the date of grant. Employer may also grant to Officer stock
options in respect of each of the Fiscal Years ending in 2000 and 2001 for such
number of shares of Employer's common stock as the Compensation Committee in its
sole discretion determines, taking into account Officer's and Employer's
performance in each of such Fiscal Years and the competitive practices then
prevailing regarding the granting of stock options. All stock options granted in
accordance with this Section 4(c) shall be granted pursuant to the Countrywide
Credit Industries, Inc. 1993 Stock Option Plan, as amended (the "1993 Plan"), or
such other stock option plan or plans as may be or come into effect during the
term of this Agreement and shall have a per share exercise price equal to the
fair market value (as defined in the 1993 Plan or such other plan or plans) of
the common stock at the time of grant. The stock options granted pursuant to
this Section shall consist of incentive stock options to the extent permitted by
law or regulation.
(d) Additional Benefits. Officer shall also be entitled to all
rights and benefits for which he is otherwise eligible under any bonus plan,
stock purchase plan, participation or extra compensation plan, executive
compensation plan, pension plan, profit-sharing plan, life and medical insurance
policy, or other plans or benefits, which Employer or its subsidiaries may
provide for him, or provided he is eligible to participate therein, for senior
officers generally or for employees generally, during the term of this Agreement
(collectively, "Additional Benefits"). This Agreement shall not affect the
provision of any other compensation, retirement or other benefit program or plan
of Employer.
(e) Continuation of Benefits. If Officer's employment is
terminated hereunder, pursuant to Section 5(a), 5(b) or 5(d) hereof, Employer
shall continue for the period specified in Section 5(a) or 5(b) hereof or three
years in the case of a termination pursuant to Section 5(d) hereof, as the case
may be, to provide benefits substantially equivalent to Additional Benefits
(other than qualified pension or profit sharing plan benefits and option, equity
or stock appreciation or other incentive plan benefits as distinguished from
health, disability and welfare type benefits) on behalf of Officer and his
dependents and beneficiaries which were being provided to them immediately prior
to Officer's Termination Date, but only to the extent that Officer is not
entitled to comparable benefits from other employment.
(f) Deferral of Amounts Payable Hereunder. In the event
Officer should desire to defer receipt of any cash payments to which he would
otherwise be entitled hereunder, he may present such a written request to the
Compensation Committee which, in its sole discretion, may enter into a separate
deferred compensation agreement with Officer.
(g) Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Performance Ratio be less than zero. Employer
shall pay the incentive compensation award described in Section 4(b) hereof for
each Fiscal Year as early after the end of such Fiscal Year as practicable but
in no event more than 90 days after the end of such Fiscal Year; provided,
however, that the incentive compensation award described in Section 4(b) hereof
may be paid, in whole or in part, prior to the end of the Fiscal Year to which
such incentive compensation award relates, on such terms and conditions and at
such times as may otherwise be mutually agreed upon by Employer and Officer. If
the Compensation Committee shall determine to grant to Officer the stock options
described in Section 4(c) hereof in respect of either of the Fiscal Years ending
in 2000 or 2001, such options shall be granted at the same time as Employer
grants stock options to its other senior executives in respect of such Fiscal
Year (but in no event later than June 30 following the end of such Fiscal Year).
5. Termination. The compensation and benefits provided for herein and the
employment of Officer by Employer shall be terminated only as provided for below
in this Section 5:
(a) Disability. In the event that Officer shall fail, because
of illness, injury or similar incapacity ("Disability"), to render for four (4)
consecutive calendar months, or for shorter periods aggregating eighty (80) or
more business days in any twelve (12) month period, services contemplated by
this Agreement, Officer's full-time employment hereunder may be terminated, by
written Notice of Termination from Employer to Officer; and thereafter, Employer
shall continue, from the Termination Date until Officer's death or the fifth
anniversary of such notice, whichever first occurs (the "Disability Payment
Period"), (i) to pay compensation to Officer, in the same manner as in effect
immediately prior to the Termination Date, in an amount equal to (1) fifty
percent (50%) of the then existing base salary payable immediately prior to the
termination, minus (2) the amount of any cash payments to him under the terms of
Employer's disability insurance or other disability benefit plans or Employer's
tax-qualified Defined Benefit Pension Plan, and any compensation he may receive
pursuant to any other employment, and (ii) to provide during the Disability
Payment Period the benefits specified in Section 4(e) hereof.
The determination of Disability shall be made only after 30
days notice to Officer and only if Officer has not returned to performance of
his duties during such 30-day period. In order to determine Disability, both
Employer and Officer shall have the right to provide medical evidence to support
their respective positions, with the ultimate decision regarding Disability to
be made by a majority of Employer's disinterested directors.
(b) Death. In the event that Officer shall die during the term
of this Agreement, Employer shall pay Officer's base salary for a period of
twelve (12) months following the date of Officer's death and in the manner
otherwise payable hereunder, to such person or persons as Officer shall have
directed in writing or, in the absence of a designation, to his estate (the
"Beneficiary"). Employer shall also provide during the twelve-month period
following the date of the Officer's death the benefits specified in Section 4(e)
hereof. If Officer's death occurs while he is receiving payments for Disability
under Section 5(a)(i) above, such payments shall cease and the Beneficiary shall
be entitled to the payments and benefits under this Subsection (b), which shall
continue for a period of twelve months thereafter at the full rate of
compensation in effect immediately prior to the Disability. This Agreement in
all other respects will terminate upon the death of Officer; provided, however,
that the termination of the Agreement shall not affect Officer's entitlement to
all other benefits in which he has become vested or which are otherwise payable
in respect of periods ending prior to its termination.
(c) Cause. Employer may terminate Officer's employment under
this Agreement for "Cause." A termination for Cause is a termination by reason
of (i) a material breach of this Agreement by Officer (other than as a result of
incapacity due to physical or mental illness) which is committed in bad faith or
without reasonable belief that such breach is in the best interests of Employer
and which is not remedied within a reasonable period of time after receipt of
written notice from Employer specifying such breach, or (ii) Officer's
conviction by a court of competent jurisdiction of a felony, or (iii) entry of
an order duly issued by any federal or state regulatory agency having
jurisdiction in the matter removing Officer from office of Employer or its
subsidiaries or permanently prohibiting him from participating in the conduct of
the affairs of Employer or any of its subsidiaries. If Officer shall be
convicted of a felony or shall be removed from office and/or temporarily
prohibited from participating in the conduct of Employer's or any of its
subsidiaries' affairs by any federal or state regulatory authority having
jurisdiction in the matter, Employer's obligations under Sections 4(a), 4(b) and
4(c) hereof shall be automatically suspended; provided, however, that if the
charges resulting in such removal or prohibition are finally dismissed or if a
final judgment on the merits of such charges is issued in favor of Officer, or
if the conviction is overturned on appeal, then Officer shall be reinstated in
full with back pay for the removal period plus accrued interest at the rate then
payable on judgments. During the period that Employer's obligations under
Sections 4(a), 4(b) and 4(c) hereof are suspended, Officer shall continue to be
entitled to receive Additional Benefits under Section 4(d) until the conviction
of the felony or removal from office has become final and non-appealable. When
the conviction of the felony or removal from office has become final and
non-appealable, all of Employer's obligations hereunder shall terminate;
provided, however, that the termination of Officer's employment pursuant to this
Section 5(c) shall not affect Officer's entitlement to all benefits in which he
has become vested or which are otherwise payable in respect of periods ending
prior to his termination of employment.
(d) Good Reason. Officer may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall be deemed to occur
if Employer notifies Officer of a termination of his employment other than for
Cause or if Employer breaches this Agreement in any material respect or if the
Board (i) elects a person other than Officer as Employer's President or Chairman
of the Board without Officer's consent, (ii) reorganizes management so as to
require him to report to a person or persons other than the Board, or (iii)
takes any other action which, in Officer's sole judgment, results in the
diminution in Officer's status, title, position and responsibilities other than
an insubstantial action not taken in bad faith and which is remedied by Employer
promptly after receipt of notice by Officer. Notwithstanding the foregoing,
Officer may terminate his employment for any or no reason within one year
following a "Change in Control" (as defined in Appendix A to this Agreement) and
such termination shall be considered a termination for Good Reason hereunder. If
Officer's employment shall be terminated by Employer other than for Cause or by
Officer for Good Reason, then Employer shall pay Officer in a single payment, as
severance pay and in lieu of any further salary and incentive compensation for
periods subsequent to the Termination Date, an amount in cash equal to three
times the sum of (A) Officer's annual base salary at the Termination Date and
(B) the aggregate bonus and/or incentive compensation paid or payable to Officer
in respect of the Fiscal Year preceding the fiscal year in which Officer's
Termination Date occurs.
Notwithstanding anything in this Agreement to the contrary, in
the event it shall be determined that any payment or distribution by Employer or
any other person or entity to or for the benefit of Officer (within the meaning
of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise in connection with, or arising out of,
his employment with Employer or a change in ownership or effective control of
Employer or a substantial portion of its assets (a "Payment"), would be subject
to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the
Payments shall be reduced (but not below zero) if and to the extent that such
reduction would result in Officer retaining a larger amount, on an after-tax
basis (taking into account federal, state and local income taxes and the
imposition of the Excise Tax), than if Officer received all of the Payments. If
the application of the preceding sentence should require a reduction in Payments
or other "parachute payments" (within the meaning of Section 280G of the Code),
unless Officer shall have designated otherwise, such reduction shall be
implemented, first, by reducing any non-cash benefits to the extent necessary
and, second, by reducing any cash benefits to the extent necessary. In each
case, the reductions shall be made starting with the payment or benefit to be
made on the latest date following the Termination Date and reducing payments or
benefits in reverse chronological order therefrom. All determinations concerning
the application of this paragraph shall be made by a nationally recognized firm
of independent accountants, selected by Officer and satisfactory to Employer,
whose determination shall be conclusive and binding on all parties. The fees and
expenses of such accountants shall be borne by Employer.
(e) Resignation. Except as provided in Section 5(d) hereof, if
during the term of this Agreement, Officer shall resign voluntarily, all of his
rights to payment or benefits hereunder shall immediately terminate; provided,
however, that the termination of Officer's employment pursuant to this Section
5(e) shall not affect Officer's entitlement to all benefits in which he has
become vested or which are otherwise payable in respect of periods ending prior
to his termination of employment.
(f) Notice of Termination. Any purported termination by
Employer or by Officer shall be communicated by a written Notice of Termination
to the other party hereto which indicates the specific termination provision in
this Agreement, if any, relied upon and which sets forth in reasonable detail
the facts and circumstances, if any, claimed to provide a basis for termination
of Officer's employment under the provision so indicated. For purposes of this
Agreement, no such purported termination shall be effective without such Notice
of Termination. The "Termination Date" shall mean the date specified in the
Notice of Termination, which shall be no less than 30 or more than 60 days from
the date of the Notice of Termination. Notwithstanding any other provision of
this Agreement, in the event of any termination of Officer's employment
hereunder for any reason, Employer shall pay Officer his full base salary
through the Termination Date, plus any Additional Benefits which have been
earned or become payable, but which have not yet been paid as of such
Termination Date plus (unless Officer has resigned voluntarily pursuant to
Section 5(e) or been terminated for Cause in accordance with Section 5(c)
hereof) the Pro Rata Bonus (as defined below). The "Pro Rata Bonus" shall mean
the amount equal to the product of (x) the bonus or incentive award referred to
in Section 4(b) hereof paid or payable to Officer for the last full Fiscal Year
of Employer prior to Officer's Termination Date and (y) the fraction obtained by
dividing (A) the number of days elapsed since the end of such Fiscal Year
through the Termination Date and (B) 365.
(g) Payments. All payments required under this Agreement
(other than the Additional Benefits payable pursuant to Section 4(e) hereof) as
a result of the termination of Officer's employment hereunder shall be made
within 15 days of the Termination Date or, if any portion is not then reasonably
determinable, within five (5) days after such portion is so determinable. In the
event of a dispute concerning the validity of a purported termination which is
maintained in good faith, the Termination Date shall mean the date the dispute
is finally resolved and Employer will continue to provide Officer with the
compensation and benefits provided for under this Agreement, until the dispute
is finally resolved without any obligation by Officer to repay any of such
amounts to Employer, notwithstanding the final outcome of the dispute. Payments
required to be made by this Section 5(g) are in addition to all other amounts
due under Section 5 of this Agreement and shall not be offset against or reduce
any other amounts due under Section 5 of this Agreement. Officer shall be
required to render services to Employer during the period following his
Termination Date but before the dispute concerning the termination is finally
determined unless Employer fails to provide Officer with a reasonable
opportunity to perform his duties under this Agreement during such period.
6. Reimbursement of Business Expenses. During the term of this
Agreement, Employer shall reimburse Officer promptly for all expenditures
(including travel, entertainment, parking, business meetings, and the monthly
costs (including dues) of maintaining memberships at appropriate clubs) to the
extent that such expenditures meet the requirements of the Code for
deductibility by Employer for federal income tax purposes or are otherwise in
compliance with the rules and policies of Employer and are substantiated by
Officer as required by the Internal Revenue Service and rules and policies of
Employer.
7. Indemnity. To the extent permitted by applicable law, the
Certificate of Incorporation and the By-Laws of Employer (as from time to time
in effect) and any indemnity agreements entered into from time to time between
Employer and Officer, Employer shall indemnify Officer and hold him harmless for
any acts or decisions made by him in good faith while performing services for
Employer, and shall use reasonable efforts to obtain coverage for him under
liability insurance policies now in force or hereafter obtained during the term
of this Agreement covering the other officers or directors of Employer.
8. Miscellaneous.
(a) Succession. This Agreement shall inure to the benefit of
and shall be binding upon Employer, its successors and assigns, but without the
prior written consent of Officer, this Agreement may not be assigned other than
in connection with a merger or sale of substantially all the assets of the
Employer or similar transaction. Employer shall not agree to any such
transaction unless the successor to or assignee of the Company's business and/or
assets in such transaction expressly assumes all obligations of the Employer
hereunder. The obligations and duties of Officer hereby shall be personal and
not assignable.
(b) Notices. Any notices provided for in this Agreement shall
be sent to Employer at 155 North Lake Avenue, Pasadena, California 91101,
Attention: Corporate Counsel/Secretary, with a copy to the Chairman of the
Compensation Committee at the same address, or to such other address as Employer
may from time to time in writing designate, and to Officer at such address as he
may from time to time in writing designate (or his business address of record in
the absence of such designation). All notices shall be deemed to have been given
two (2) business days after they have been deposited as certified mail, return
receipt requested, postage paid and properly addressed to the designated address
of the party to receive the notices.
(c) Effective Date. This Agreement shall become effective on
the date of the annual meeting of Employer's stockholders in 1996 (the
"Effective Date") provided Employer's stockholders vote to approve the
provisions of Section 4(b) hereof and the amendments to the 1993 Plan as
submitted to the stockholders for approval. If either of such matters is not
approved by Employer's stockholders, this Agreement shall be null and void and
the First Restated Agreement shall continue in full force and effect.
(d) Entire Agreement. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and it replaces
and supersedes any prior agreements between the parties relating to said subject
matter, including, but not limited to, the First Restated Agreement; provided,
however, that until this Agreement shall become effective, the First Restated
Agreement shall continue in full force and effect. No modifications or
amendments of this Agreement (including, but not limited to the provisions of
Section 4 hereof) shall be valid unless made in writing and signed by the
parties hereto.
(e) Waiver. The waiver of the breach of any term or of any
condition of this Agreement shall not be deemed to constitute the waiver of any
other breach of the same or any other term or condition.
(f) California Law. This Agreement shall be construed and interpreted in
accordance with the laws of California.
(g) Attorneys' Fees in Action on Contract. If any litigation
shall occur between the Officer and Employer, which litigation arises out of or
as a result of this Agreement or the acts of the parties hereto pursuant to this
Agreement, or which seeks an interpretation of this Agreement, the prevailing
party in such litigation, in addition to any other judgment or award, shall be
entitled to receive such sums as the court hearing the matter shall find to be
reasonable as and for the attorneys' fees of the prevailing party.
(h) Confidentiality. Officer agrees that he will not divulge
or otherwise disclose, directly or indirectly, any trade secret or other
confidential information concerning the business or policies of Employer or any
of its subsidiaries which he may have learned as a result of his employment
during the term of this Agreement or prior thereto as an employee, officer or
director of or consultant to Employer or any of its subsidiaries, except to the
extent such use or disclosure is (i) necessary or appropriate to the performance
of this Agreement and in furtherance of Employer's best interests, (ii) required
by applicable law, (iii) lawfully obtainable from other sources, or (iv)
authorized by Employer. The provisions of this subsection shall survive the
expiration, suspension or termination, for any reason, of this Agreement.
(i) Remedies of Employer. Officer acknowledges that the
services he is obligated to render under the provisions of this Agreement are of
a special, unique, unusual, extraordinary and intellectual character, which
gives this Agreement peculiar value to Employer. The loss of these services
cannot be reasonably or adequately compensated in damages in an action at law
and it would be difficult (if not impossible) to replace these services. By
reason thereof, Officer agrees and consents that if he violates any of the
material provisions of this Agreement, Employer, in addition to any other rights
and remedies available under this Agreement or under applicable law, shall be
entitled during the remainder of the term to seek injunctive relief, from a
tribunal of competent jurisdiction, restraining Officer from committing or
continuing any violation of this Agreement, or from the performance of services
to any other business entity, or both.
(j) Severability. If any provision of this Agreement is held
invalid or unenforceable, the remainder of this Agreement shall nevertheless
remain in full force and effect, and if any provision is held invalid or
unenforceable with respect to particular circumstances, it shall nevertheless
remain in full force and effect in all other circumstances.
(k) No Obligation to Mitigate. Officer shall not be required to mitigate
the amount of any payment provided for in this Agreement by seeking
<PAGE>
other employment or otherwise and, except as provided in
Section 5(a)(i)(2) hereof, no payment hereunder shall be offset or reduced by
the amount of any compensation or benefits provided to Officer in any subsequent
employment.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
COUNTRYWIDE CREDIT INDUSTRIES, INC.
ATTEST:
By:
Secretary Title:
OFFICER:
David S. Loeb, in his
individual capacity
116685.07
<PAGE>
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15
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APPENDIX A
To David Loeb Employment Agreement
A "Change in Control" shall mean the occurrence during the term of the
Agreement, of any one of the following events:
(a) An acquisition (other than directly from Employer) of any common stock
or other "Voting Securities" (as hereinafter defined) of Employer by any
"Person" (as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty five percent
(25%) or more of the then outstanding shares of Employer's common stock or the
combined voting power of Employer's then outstanding Voting Securities;
provided, however, in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. For purposes of this Agreement, (1) "Voting Securities" shall
mean Employer's outstanding voting securities entitled to vote generally in the
election of directors and (2) a "Non-Control Acquisition" shall mean an
acquisition by (i) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) Employer or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity interest
is owned, directly or indirectly, by Employer (for purposes of this definition,
a "Subsidiary"), (ii) Employer or any of its Subsidiaries, or (iii) any Person
in connection with a "Non-Control Transaction" (as hereinafter defined);
(b) The individuals who, as of the date of the Agreement are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at least
two-thirds of the members of the Board; provided, however,
-------- -------
that if the election, or nomination for election by Employer's common
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered as a member of the Incumbent Board; provided further, however,
-------- ------- -------
that no individual shall be considered a member of the Incumbent Board if
such individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization involving Employer, unless
such merger, consolidation or reorganization is a "Non-Control Transaction." A
"Non-Control Transaction" shall mean a merger, consolidation or reorganization
of Employer where:
(A) the stockholders of Employer, immediately before such merger,
consolidation or reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at least seventy percent
(70%) of the combined voting power of the outstanding Voting Securities of the
corporation resulting from such merger, consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such merger, consolidation or
reorganization;
(B) the individuals who were members of the Incumbent Board immediately
prior to the execution of the agreement providing for such merger, consolidation
or reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, or in the event that, immediately
following the consummation of such transaction, a corporation beneficially owns,
directly or indirectly, a majority of the Voting Securities of the Surviving
Corporation, the board of directors of such corporation; and
(C) no Person other than (i) Employer, (ii) any Subsidiary, (iii) any
employee benefit plan (or any trust forming a part thereof) maintained by
Employer, the Surviving Corporation, or any Subsidiary, or (iv) any Person who,
immediately prior to such merger, consolidation or reorganization had Beneficial
Ownership of twenty five percent (25%) or more of the then outstanding Voting
Securities or common stock of Employer, has Beneficial Ownership of twenty five
percent (25%) or more of the combined voting power of the Surviving
Corporation's then outstanding Voting Securities or its common stock;
(ii) A complete liquidation or dissolution of Employer; or
(iii) The sale or other disposition of all or substantially all of the
assets of Employer to any Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then outstanding
common stock or Voting Securities as a result of the acquisition of common stock
or Voting Securities by Employer which, by reducing the number of shares of
common stock or Voting Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons; provided, however,
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of common stock or Voting Securities by Employer,
and after such share acquisition by Employer, the Subject Person becomes the
Beneficial Owner of any additional common stock or Voting Securities which
increases the percentage of the then outstanding common stock or Voting
Securities Beneficially Owned by the Subject Person, then a Change in Control
shall occur.