Employment Agreement - Countrywide Credit Industries Inc. and David S. Loeb
THIRD RESTATED EMPLOYMENT AGREEMENT
THIS RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is in effect as of
March 1, 1999 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, effective as of March 1, 1999 (the "Effective Date") Officer
desires to voluntarily resign as Chairman of the Board of Employer; and
WHEREAS, from and after the Effective Date, 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 most recently set forth the terms and
conditions of Officer's employment with Employer under the Second Restated
Employment Agreement as of March 26, 1996 (the "Second 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.
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 and terminating on the first anniversary of the Effective Date;
provided, however, that in the event that a "Change in Control" (as defined in
Appendix A to this Agreement) shall occur prior to the first anniversary of the
Effective Date, the term of Officer's employment under this Agreement shall
automatically be extended until the second anniversary of the Effective Date.
Notwithstanding anything contained in this Agreement to the contrary, Officer's
employment with Employer may be terminated at any time in accordance with the
provisions hereof.
2. Specific Position; Duties and Responsibilities. Effective as of the
Effective Date, Officer shall cease to hold the office of Chairman of the Board
of Employer and Employer and Officer hereby agree that during the term set forth
in this Agreement, Employer will continue to employ Officer and Officer will
continue to serve Employer as President. Employer agrees that Officer's duties
hereunder shall be designated from time to time by the Board, and shall not be
inconsistent with those customarily assigned to a senior executive having the
status, experience and expertise of Officer. 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 such of his business time and energy as
shall be necessary to discharge his duties hereunder, 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 as a director
and/or in such senior executive capacity not below the rank of President of 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(b) hereof.
During the course of Officer's employment 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, serve in any capacity with any civic, educational or charitable
organization, governmental entity or trade association, and continue his current
activities in connection with Indymac Mortgage Holdings, Inc. and those certain
activities in Reno, Nevada in which Officer engages as of the date hereof and
may, in any geographic location, engage in activities that are the same or
substantially similar to those certain activities in Reno, Nevada in which
officer engages as of the date hereof, in each case without seeking or obtaining
approval by the Board, provided such activities and services do not materially
adversely affect the performance of his duties hereunder.
4. Compensation and Benefits.
Base Salary. Employer shall pay to Officer a base salary at
an annual rate of $650,000.
(b) Incentive Compensation: Fiscal Year 1999. Employer shall
pay to Officer for the Fiscal Year ending in 1999 an incentive compensation
award in accordance with the provisions of Sections 4(b) of the Second Restated
Agreement.
(c) Incentive Compensation: Fiscal Year 2000. Employer shall
pay to Officer for the Fiscal Year ending in 2000 an incentive compensation
award in an amount equal to 25% of the amount of the incentive compensation
award paid or payable to the Chairman of the Board in respect of such Fiscal
Year.
(d) Incentive Compensation: Fiscal Year 2001. In the event
that the term of Officer's employment under this Agreement shall be extended
until the second anniversary of the Effective Date as a result of the occurrence
of a Change in Control, Employer shall pay to Officer for the Fiscal Year ending
in 2001 an incentive compensation award in an amount equal to 25% of the
incentive compensation award paid or payable to Officer in accordance with the
provisions of Section 4(b) of this Agreement for the Fiscal Year ending in 1999.
(e) Timing of Payment of Incentive Compensation Awards.
Employer shall pay to Officer the incentive compensation awards described in
Sections 4(b), 4(c) and 4(d) of this Agreement for each Fiscal Year as early as
practicable after the end of the Fiscal Year to which each such incentive
compensation award relates, but in no event more than 90 days after the end of
such Fiscal Year; provided, however, that the incentive compensation awards
described in Sections 4(b), 4(c) and 4(d) of this Agreement may be paid, in
whole or in part, prior to the end of the Fiscal Year to which each 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.
(f) Stock Options. Officer shall, at the same time during
calendar year 2000 as Employer shall grant stock options to its senior
executives generally (but in no event later than June 30, 2000), be granted
stock options to purchase a number of shares of Employer's common stock equal to
25% of the number of shares of Employer's common stock subject to stock options
granted to the Chairman of the Board of Employer at such time; provided,
however, that in no event shall Officer be granted stock options to purchase
more than 85,000 shares of Employer's common stock. All stock options granted in
accordance with this Section 4(f) 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 in or come into effect during
the term of Officer's employment with Employer and shall have a per share
exercise price equal to the fair market value (as defined in the 1993 Plan or
such other applicable plan or plans) of the common stock at the time of grant.
(g) 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, deferred compensation
plan, life or 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 Officer's employment with Employer (collectively, "Additional
Benefits"). This Agreement shall not affect the provision of any other
compensation, retirement or other benefit program or plan of Employer.
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) Death. Officer's employment with Employer under thi
Agreement shall immediately terminate upon Officer's death.
(b) 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),
4(c), 4(d), 4(e) and 4(f) 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), 4(c), 4(d), 4(e) and 4(f)
hereof are suspended, Officer shall continue to be entitled to receive
Additional Benefits under Section 4(g), but only 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, Officer's employment with Employer under this Agreement shall
immediately terminate.
(c) Other Termination. Officer's employment with Employer
under this Agreement may be terminated other than by Employer for Cause or as a
result of Officer's death at any time by either Employer or Officer. In the
event of any such termination, Officer's employment with Employer under this
Agreement shall terminate as of the Termination Date (as defined below) set
forth in the Notice of Termination (as defined below) with respect to such
termination.
(d) Notice of Termination. Any purported termination by
Employer or by Officer pursuant to this Section 5 (other than a termination as a
result of Officer's death) shall be communicated in a writing (a "Notice of
Termination") to the other party hereto. In the event that a purported
termination of Officer's employment with Employer hereunder is by Employer for
Cause, the Notice of Termination shall state that Employer is terminating
Officer's employment for Cause and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for such a termination. For
purposes of this Agreement, no purported termination shall be effective without
a Notice of Termination. The "Termination Date" shall mean the date specified in
the Notice of Termination, which, except in the event of a termination by
Employer for Cause, shall not be less than 30 nor more than 60 days from the
date of the Notice of Termination.
(e) Effect of a Termination. Upon any termination of Officer's
employment with Employer under this Agreement, except as expressly set forth in
subparagraphs (i) through (v) of this Section 5(e), all of Employer's
obligations hereunder shall terminate.
(i) Upon a termination of Officer's employment
with Employer under this Agreement for any reason: (A)
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; and (B) Officer, or in the
event of Officer's death, such person or persons as Officer shall have
designated in writing or, in the absence of such a written designation,
Officer's estate (the "Beneficiaries"), shall be entitled to all benefits in
which Officer shall have become vested or which shall otherwise be payable in
respect of periods ending prior to termination (other than the Additional
Benefits referred to in clause (A) of this subparagraph).
(ii) Upon a termination, at any time, of
Officer's employment with Employer under this Agreement forany reason other than
by Employer for Cause or as a result of Officer's death,Employer shall, until
Officer's death, continue to provide medical coverage to Officer and his
spouse on a basis substantially equivalent to that on which
Employer provided medical coverage to Officer and his spouse immediately prior
to termination of Officer's employment with Employer (with such changes as may
from time to time be applicable to Employer's other senior executives and their
spouses generally), provided, however, that Officer and his spouse shall only be
entitled to such medical coverage, if and to the extent that Officer or his
spouse, as the case may be, is not entitled to comparable medical coverage from
other employment.
(iii) Upon a termination of Officer's employment with
Employer under this Agreement other than (A) by
Employer for Cause or (B) within one year following a Change in Control,
voluntarily by Officer or by Employer other than for Cause, Employer shall, as
soon as practicable following Employer's determination of the amount thereof,
pay Officer or the Beneficiaries, as the case may be, the Pro Rata Bonus (as
defined below). The "Pro Rata Bonus" shall mean the amount equal to the product
of (A) the bonus or incentive award referred to in Section 4(b), 4(c) or 4(d)
hereof, as the case may be, to which Officer would have been entitled in respect
of the Fiscal Year in which the Termination Date shall have occurred had Officer
continued in employment with Employer until the end of such Fiscal Year and (B)
the fraction obtained by dividing (1) the number of days elapsed in such Fiscal
Year through the Termination Date by (2) 365.
(iv) Upon a termination, within one year
following a Change in Control, of Officer's employment with Employer under this
Agreement by Employer other than for Cause or voluntarily by Officer, Employer
shall pay Officer an amount equal to three times the sum of (A) Officer's
annual base salary at the Termination Date and (B) an amount equal
to 25% of the incentive compensation award paid or payable to Officer in
accordance with Section 4(b) of this Agreement for the Fiscal Year ending in
1999.
(v) Notwithstanding anything to the contrary
contained in any applicable plan of Employer or in any other agreement between
Employer and Officer, upon a termination of Officer's employment with Employer
under this Agreement as a result of Officer's death,all theretofore unvested
or unexercisable options to purchase stock of Employer then held by Officer
shall become vested and exercisable.
(vi) Notwithstanding anything to the contrary
contained in any applicable plan of Employer or in any other agreement between
Employer and Officer, upon a termination of Officer's employment with Employer
under this Agreement for Cause, all options to purchase stock of the Employer
then held by Officer shall immediately be forfeited.
(f) Payments. All cash payments (other than the Pro Rata
Bonus, which shall be paid to Officer or the Beneficiaries, as the case may be,
as soon as practicable following Employer's determination of the amount thereof)
required under this Agreement as a result of the termination of Officer's
employment hereunder shall be made within fifteen (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.
(g) Excise Tax. 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.
6. Reimbursement of Business Expenses. During the term of Officer's
employment with Employer as provided under 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 4500 Park Granada, Calabasas, California 91302,
Attention: General 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 (i) 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 and (ii) shall be deemed to have
been given on the date of delivery if notice is given by means of Federal
Express or other reputable overnight courier service.
(c) 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 Second Restated Agreement; provided,
however, that until this Agreement shall become effective, the Second 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.
(d) 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.
(e) California Law. This Agreement shall be construed
and interpreted in accordance with the laws of California.
(f) 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.
(g) 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 at any time 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 Officer's
employment with Employer.
(h) 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.
(i) 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.
(j) No Obligation to Mitigate. Officer shall not be required
to mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise and no payment hereunder (other than payments in
respect of the medical coverage to be provided to Officer and his spouse
pursuant to Section 5(e)(ii) hereof) 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
235382.10
<PAGE>
APPENDIX A
To David Loeb Employment Agreement
A "Change in Control" shall mean the occurrence, prior to the
first anniversary of the Effective Date, 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 Effective Date 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.