Amendment to Subparagraph. 9(b)(1). Clause (1) of Subparagraph 9(b) is --------------------------------- hereby deleted in the entirety and replaced with the following:
Amendment to Subparagraph. 8.1.2.1. Subparagraph 8.1.2.1 is amended by replacing the date "September 30, 2004" that currently appears in the Acquisition Agreement, with the date "December 31, 2004."
Amendment to Subparagraph. 8(d). The introductory phrase in the ------------------------------ sentence of Subparagraph 8(d) immediately preceding Subparagraph 8(d)(1) of the Employment Agreement is hereby deleted and replaced with the following: In addition, subject to signing by Executive of a general release of claims in the form attached to Addendum No. 3 as Attachment A:
Amendment to Subparagraph. 3(a). Subparagraph 3(a) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
Amendment to Subparagraph. 8(a). The first sentence of subparagraph 8(a) of the Employment Agreement is hereby deleted in its entirety and replaced with the following sentence: If Executive's employment terminates by reason of his death, Employer shall, within thirty (30) days of death, pay in a lump sum amount to such person as his estate shall designate in a notice filed with Employer or, if no such person is designated, to Executive's estate, (i) Executive's accrued and unpaid Base Salary or, if applicable, his Adjusted Base Salary, through the date of his death, (ii) any unpaid amount of the Retention Bonus, and (iii) any accrued and unpaid Incentive Compensation and Pro Rata Incentive Compensation.
Amendment to Subparagraph. 8(b). The first and second sentences of subparagraph 8(b) of the Employment Agreement are hereby deleted in their entirety and replaced with the following sentences: During any period that Executive is unable to perform his duties hereunder as a result of incapacity due to physical or mental illness or injury, Executive shall continue to receive (i) his accrued and unpaid Base Salary or, if applicable, his Adjusted Base Salary, (ii) any accrued and unpaid amounts of his Retention Bonus, if applicable, and (iii) any accrued and unpaid Incentive Compensation payments under subparagraph 3(b), until and unless Executive's employment is terminated due to Disability in accordance with subparagraph 7(b) or until Executive terminates his employment in accordance with subparagraph 7(e), whichever first occurs. In the event of termination due to Disability, Employer shall, within thirty (30) days of the Disability Effective Date, pay in a lump sum amount to Executive (i) his accrued and unpaid Base Salary or, if applicable, his Adjusted Base Salary through the Date of Termination, (ii) any unpaid amount of the Retention Bonus, and (iii) any accrued and unpaid Incentive Compensation and Pro Rata Incentive Compensation.
Amendment to Subparagraph. 8(c). The first sentence of subparagraph 8(c) of the Employment Agreement is hereby deleted in its entirety and replaced with the following sentence: If Executive's employment is terminated by Executive other than for Good Reason, then Employer shall, through the Date of Termination, pay Executive (i) his accrued and unpaid Base Salary or, if applicable, his Adjusted Base Salary then in effect on the date Notice of Termination is given, (ii) any accrued but unpaid "Pro Rata Retention Bonus" (as hereinafter defined) if such termination occurs before the last day of the Retention Period, (iii) any accrued, earned and unpaid Incentive Compensation, and (iv) such other benefits as are available under any Employer policy or practice then in effect. Pro Rata Retention Bonus equals the Retention Bonus multiplied by a fraction, the numerator of which is the number of days of Executive's employment during the Retention Period, including the Date of Termination in such period, and the denominator of which is 1,096. Notwithstanding the foregoing, if Executive terminates employment other than for Good Reason during the Retention Period, Executive must remit to Employer the difference between the amount of Retention Bonus already paid to Executive and the Pro Rata Retention Bonus.
Amendment to Subparagraph. 8(e). Subparagraph 8(e) of the Employment Agreement is hereby deleted in its entirety and replaced with the following: If Executive's employment is terminated by Employer for Cause as provided in subparagraph 7(c), then Employer shall, through the Date of Termination, pay Executive (i) his accrued and unpaid Base Salary or, if applicable, his Adjusted Base Salary then in effect on the date Notice of Termination is given, (ii) any accrued but unpaid Pro Rata Retention Bonus, and (iii) his accrued, earned and unpaid Incentive Compensation. Notwithstanding the foregoing, if Employer terminates Executive's employment for Cause during the Retention Period, Executive must remit to Employer the difference between the amount of the Retention Bonus already paid to Executive and the Pro Rata Retention Bonus.
Amendment to Subparagraph. 9(a). In the seventh line of subparagraph 9(a) of the Employment Agreement, the words "Five Million Dollars ($5,000,000.00)" are deleted in their entirety and replaced with the following: Four Million Dollars ($4,000,000.00).
Amendment to Subparagraph. (h) of Section 1. Subparagraph (h) of Section 1 of the Rights Agreement is amended by adding the following sentence at the end thereof: "Notwithstanding the foregoing or anything in this Rights Agreement to the contrary, a Distribution Date shall not be deemed to have occurred by virtue of the Merger Agreement or by virtue of any of the transactions contemplated by the Merger Agreement."
