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."
Amendment to Subparagraph. 3(a). The last sentence of Subparagraph 3(a) ------------------------------ is hereby deleted in its entirety and replaced with the following: In addition to Base Salary or Adjusted Base Salary, Executive shall be eligible during the Period of Employment to receive cash incentive compensation as determined by the Board from time to time (the "Incentive Compensation"), and shall be eligible to participate in such incentive compensation plans as the Board shall determine from time to time for employees of the same status within the hierarchy of the Company.
Amendment to Subparagraph. 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. 9(a). Subparagraph 9(a) is hereby deleted in ------------------------------ its entirety and replaced with the following:
(a) Within fifteen (15) days after the occurrence of the first event constituting a Change in Control (irrespective of whether Executive has knowledge of such event) that is not a Hostile Takeover (as hereinafter defined), Employer and Executive shall enter into an escrow agreement in the form attached to the Addendum as Attachment C (the "Parachute Escrow Agreement") and Employer shall place in the escrow provided thereby immediately negotiable funds in an amount equal to Five Million Dollars ($5,000,000.00) attributable to Subparagraph 9(c) (the "Put Payment"); provided, however, that if the first event constituting a Change in Control is a Hostile Takeover (as hereinafter defined), then within fifteen (15) days after the occurrence of such event, (i) the remaining portion of the "Parachute Amount" (as hereinafter defined), net of any Gross Up Payments (as hereinafter defined) paid or payable by Employer within fifteen (15) days after the occurrence of such event, shall also be funded by Employer in immediately negotiable funds into such escrow and (ii) the parties shall make such changes to the Parachute Escrow Agreement as shall be appropriate to provide for the timely payment to Executive of such additional funds held in the escrow in the event Executive becomes entitled thereto under the applicable provisions of this Agreement. The Escrow Arrangement shall be maintained until the earlier of (A) nineteen (19) months after the occurrence of the first event constituting a Change in Control or (B) the payment to Executive of all funds in the escrow to which he is entitled pursuant to this Agreement and the Parachute Escrow Agreement.
