EXHIBIT 10.1
First Capital Bancshares, Inc.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") dated April 24th, 2001 is
made by and between First Capital Bancshares, Inc., a unitary thrift holding
company (the "Company") and First Capital Bank, a federal savings association
(the "Bank") (the Company and the Bank are collectively referred to as the
"Employer"), and Xxxxxxx 0. Xxxxxx, an individual resident of North Carolina
(the "Employee"), and is effective as of the 31st day of August, 2000
("Effective Date").
The Employer intends to employ the Employee as the Chief Executive
Officer and President of the Company and the Bank. The Employer recognizes that
the Employee's anticipated contribution to the growth and success of the
Employer is substantial. The Employer desires to provide for the employment of
the Employee which the Employer has determined will reinforce and encourage the
continued dedication of the Employee to the Employer and will promote the best
interests of the Employer and its shareholders. The Employee is willing to serve
the Employer on the terms and conditions herein provided.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree that on the Effective Date:
1. Employment. The Employer shall employ the Employee, and the Employee
shall serve the Employer, as Chief Executive Officer and President of the
Company and the Bank upon the terms and conditions set forth herein. The
Employee shall have such authority and responsibilities as are consistent with
his position and which may be set forth in this Agreement or assigned by the
Board of Directors from time to time. The Employee shall devote his full
business time, attention, skill and efforts to the performance of his duties
hereunder, except during periods of illness or periods of vacation and leaves of
absence consistent with the Employer's policy. The Employee may devote
reasonable periods of time to perform charitable and other community activities
and to manage his personal investments; provided, however, that such activities
will not materially interfere with the performance of his duties hereunder and
will not be in conflict or competitive with, or adverse to, the interests of the
Employer. Under no circumstances will the Employee work for any competitor or
have any financial interest in any competitor of the Employer; provided,
however, that the Employee may invest in up to 1% of the publicly-traded stock
or securities of any company whose stock or securities are traded on a national
exchange.
2. Term. Unless earlier terminated as provided herein, the Employee's
employment under this Agreement shall be for a term (the "Term") of three years,
subject to renewal for additional three year terms upon satisfactory review of
the Employee's performance and written approval by the Board of Directors.
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3. Compensation and Benefits.
a. The Employer shall pay the Employee a salary at a rate of not less
than $115,000 per annum (the "Salary Base") in accordance with the salary
payment practices of the Employer. The Board of Directors shall review the
Employee's salary at least annually and may increase the Employee's base salary
if it determines in its sole discretion that an increase is appropriate.
b. The Employee shall be entitled to the sum of $1,500 per month (the
"Benefit Base") as fringe benefits representing automobile expenses, country
club dues, and health insurance expenses. For purposes of computing the base
salary in the event of termination in accordance with Section 4 below, the
Employee's base salary shall be equal to the Salary Base plus the Benefit Base,
or $133,000 on an annual basis.
c. The Employee shall participate in any retirement, welfare, deferred
compensation, life insurance, and other benefit plans or programs of the
Employer now or hereafter applicable to the Employee or applicable generally to
employees of the Employer, as determined by the Board of Directors.
d. The Employee shall be entitled to 15 days paid vacation during the
first 12 months of employment with Employer, and thereafter to 20 days per 12
month period for the remainder of the Term. Employee shall also be entitled to
all paid holidays given by the Employer to its other employees. In addition,
Employee shall be entitled to 10 sick day leaves during the first 12 months of
his employment without deduction in pay and in each subsequent 12 month period,
15 days paid sick leave.
e. The Employer shall continue to reimburse the Employee for reasonable
travel and other expenses related to the Employee's duties which are incurred
and accounted for in accordance with the Employer's standard business practices.
f. The Employee shall receive a cash bonus in the amount of $15,000 on
January 15, 2002, for the 2001 fiscal year, if the Bank receives a minimum grade
of three on the OTS safety and soundness test. Each year thereafter, the
Employee shall be eligible to receive a cash bonus equaling 5% of the prior
year's net operating profits of the Bank (determined in accordance with
generally accepted accounting principals) plus an additional 1,000 stock options
(the "Bonus Plan"), based upon the achievement of specified goals and criteria,
including, but not limited to, the Bank's profitability, capital ratios, asset
quality, interest rate risk, and other short and long term goals as established
by the Board of Directors (the "Bonus Criteria"). The 1,000 stock option grants
will be granted for five years for a total of 5,000 stock options. Unless
provided otherwise in any particular Bonus Plan, each annual award will vest on
January 1 of the year following the year for which the award is earned, provided
that the Employee is actively employed on such date. The Employer shall make
payment on any vested bonus within a reasonable period after vesting thereof.
g. The Employee shall participate in the Bank's long-term equity
incentive program and be eligible for the grant of stock options, restricted
stock, and other awards thereunder or under any similar plan adopted by the
Company. The Company shall grant to the Employee an option to purchase 30,000
shares of Common Stock at an exercise price of $7.80 per share (the "Option
Agreement"). The award agreement for the stock option shall provide that
one-fifth of the shares subject to the option will vest on each of the first
five anniversaries of the date Employee commenced his employment with the
Company, but only if the Employee remains employed by the Company on such date,
and shall contain other customary terms and conditions. At least 17,000 shares
subject to the Option Agreement shall be granted as soon as reasonable possible
following the execution of this Agreement. Employee acknowledges that the
Company's existing option plan will have to be amended by the Board of Directors
in order to grant the additional 13,000 stock option shares thereunder. In the
event the Board of Directors does not amend the option plan and grant the
additional 13,000 options to Employee by October 31, 2000, then the Company
shall instead grant to Employee 13,000 nonqualified stock options outside of the
option plan or 13,000 stock appreciation rights with respect to the Company's
common stock in substantially the same terms as the options issued above.
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4. Termination.
a. The Employee's employment under this Agreement may be terminated
prior to the end of the Term only as follows:
(i) upon the death of the Employee;
(ii) upon the disability of the Employee for a period of 180 days
which, in the opinion of the Board of Directors, renders him
unable to perform the essential functions of his job and for
which reasonable accommodation is unavailable. For purposes of
this Agreement, a "disability" is defined as a physical or mental
impairment that substantially limits one or more major life
activities, and a "reasonable accommodation" is one that does not
impose an undue hardship on the Employer;
(iii)upon the determination of Cause for termination, in which event
such employment may be terminated by written notice at the
election of the Employer. For purposes of this Agreement, "Cause"
shall consist of any of (A) the commission by the Employee of a
willful act (including, without limitation, a dishonest or
fraudulent act, the breach of a fiduciary duty involving personal
profit, the intentional failure to perform stated duties, or the
willful violation of any law, rule, or regulation (other than
traffic violations of similar offenses), or final cease and
desist order) or a grossly negligent act, or the willful or
grossly negligent omission to act by the Employee, which is
intended to cause, causes, or is reasonably likely to cause
material harm to the Employer (including harm to its business
reputation), (B) incompetence, (C) the indictment of the Employee
for the commission or perpetration by the Employee of any felony
or any crime involving dishonesty, moral turpitude or fraud, (D)
the material breach by the Employee of this Agreement that, if
susceptible of cure, remains uncured ten days following written
notice to the Employee of such breach, or (E) the exhibition by
the Employee of a standard of behavior within the scope of his
employment that is materially disruptive to the orderly conduct
of the Employer's business operations (including, without
limitation, substance abuse or sexual misconduct) to a level
which, in the Board of Directors' good faith and reasonable
judgment, is materially detrimental to the Employer's best
interest, that, if susceptible of cure, remains uncured ten days
following written notice to the Employee of such specific
inappropriate behavior; or
(iv) upon 30 days written notice thereof to the Employee from the
Employer (termination "Without Cause"), provided that in the
event of any such termination Without Cause, Section 4(e) shall
be applicable thereto.
b. If the Employee's employment is terminated because of the Employee's
death, the Employee's estate shall receive any sums due him as base salary
and/or reimbursement) of expenses through the end of the month during which
death occurred, plus (i) any bonus earned or accrued under the Bonus Plan
through the date of death (including any amounts awarded for previous years but
which were not yet vested) and (ii) a pro rata share of any bonus with respect
to the current fiscal year which had been earned as of the date of the
Employee's death, provided that the Bonus Criteria are satisfied for the entire
current fiscal year. All earned and accrued amounts under (i) and (ii) of this
subsection, shall be paid in accordance with the Bonus Plan payment procedures
set forth in Section 3(f).
c. During the period of any incapacity leading up to the termination of
the employee's employment as a result of disability, the Employer shall continue
to pay the Employee his full base salary at the rate then in effect and all
perquisites and other benefits other than any bonus) until the Employee becomes
eligible for benefits under any long-term disability plan or insurance program
maintained by the Employer, provided that the amount of any such payments to the
Employee shall be reduced by the sum of the amounts, if any, payable to the
Employee for the same period under any disability benefit or pension plan of the
Employer or any of its subsidiaries. Furthermore, the Employee shall receive (i)
any bonus earned or accrued under the Bonus Plan through the date of incapacity
(including any amounts awarded for previous years but which were not yet vested)
and (ii) a pro rata share of any bonus with respect to the current fiscal year
which had been earned as of the date of the Employee's incapacity, provided that
the Bonus Criteria are satisfied for the entire current fiscal year. All earned
and accrued amounts under (i) and (ii) of this subsection, shall be paid in
accordance with the Bonus Plan payment procedures set forth in Section 3(f).
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d. If the Employee's employment is terminated for Cause as provided
above, or if the Employee resigns (except for a termination of employment
pursuant to Section 4(f)), the Employee shall receive any sums due him as base
salary and/or reimbursement of expenses through the date of such termination,
plus any bonus earned or accrued under the Bonus Plan through the date of
termination (excluding any amounts awarded for previous years but which were not
yet vested).
e. If the Employee's employment is terminated Without Cause, the
Employer shall pay to the Employee severance compensation in an amount equal to
100% of his then-current monthly base salary each month for 18 months from the
date of termination, plus any bonus earned or accrued under the Bonus Plan
through the date of termination (excluding any amounts awarded for previous
years but which were not yet vested). However, Section 4(f) shall apply instead
of this Section 4(e) to any termination Without Cause after a Change in Control.
f. Upon a Change in Control, the Employee may terminate his employment
hereunder for any reason upon delivery of notice to the Employer within a one
year period beginning upon the occurrence of a Change in Control. If the
Employee terminates his employment pursuant to this Section 4(f) for any reason
or the Employer either (A) requires Employee to relocate to an office more than
35 miles from the Employee's primary place of work on the date immediately
preceding the Change of Control, (B) demotes or otherwise reduces the overall
responsibilities of the Employee ((A) and (B) collectively "Termination
Events"), and following a Termination Event, the Employee terminates his
employment hereunder, or (C) terminates the Employee Without Cause, then, in
addition to other rights and remedies available in law or equity, the
restrictive covenants contained in Section 9 shall not apply and, in addition,
the Employer shall pay the Employee the following:
(a) within 15 days of such termination date, in cash, any sums due
him as base salary and/or reimbursement of expenses through the
date of such termination; plus
(b) any bonus earned or accrued under the Bonus Plan through the date
of termination (excluding any amounts awarded for previous years
but which were not yet vested); plus
(c) a pro rata share of any bonus with respect to the current fiscal
year which had been earned as of the date of the Employee's
termination (and any forfeiture in other restrictive provisions
applicable to each award shall not apply), provided that the
Bonus Criteria are satisfied for the entire current fiscal year;
plus
(d) within 15 days of such termination date, in cash, one lump sum
payment in an amount equal to the Employee's then current annual
base salary multiplied by 1 1/2 (the "Severance Payment"), except
that in the event the payment of the Severance Payment would
cause the Bank to fall into a lower capital category, or to
experience a capital failure, then the Severance Payment shall be
paid to the Employee in equal monthly installments over a period
of 18 months; provided however, that the Severance Payment is
limited to $100,000 if the Employee terminates his employment
pursuant to this Section 4.f without the occurrence of any
Termination Event.
All earned and accrued amounts under (ii) and (iii) of this subsection, shall be
paid in accordance with the Bonus Plan payment procedures set forth in Section
3(f).
g. With the exceptions of the provisions of this Section 4, and the
express terms of any benefit plan under which the Employee is a participant,
upon termination of the Employee's employment, the Employer shall have no
obligation to the Employee for, and the Employee waives and relinquishes, any
further compensation or benefits (exclusive of COBRA benefits). At the time of
termination of employment, the Employee shall enter into a form of release
acknowledging such remaining obligations and discharging the Employer, as well
as the Employer's officers, directors and employees with respect to their
actions for or on behalf of the Employer, from any other claims or obligations
arising out of or in connection with the Employee's employment by the Employer,
including the circumstances of such termination.
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h. In the event that the Employee's employment is terminated for any
reason and the Employee serves as a director of the Employer or of any
subsidiary of the Employer, the Employee shall (and does hereby) tender his
resignation from such positions effective as of the date of termination.
i. The parties intend that the severance payments and other
compensation provided for herein are reasonable compensation for the Employee's
services to the Employer and shall not constitute "excess parachute payments"
within the meaning of Section 280G(b) of the Internal Revenue Code of 1986 and
any regulations thereunder. In the event that the Employer's independent
accountants acting as auditors for the Employer on the date of a Change in
Control determine that the payments provided for herein constitute "excess
parachute payments," then the Employee's compensation payable hereunder shall be
decreased, so as to equal an amount that is $1.00 less than three times the
Employee's "base amount," as that term is defined in Section 280G(b) of the
Internal Revenue Code, if, and only if, reducing the Employee's compensation
will put the Employee in a better after-tax position than if the Employee's
compensation was not reduced.
j. Notwithstanding anything to the contrary herein, if the Employee is
suspended or temporarily prohibited from participating in the conduct of the
Employer's affairs by a notice served under section 8(e)(3) or (g)(l) of Federal
Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and (g)(l)), the Employer's
obligations under this Agreement shall be suspended as of the date of service
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Employer may in its discretion (i) pay the Employee all or part
of the compensation withheld while the obligations under this Agreement were
suspended and (ii) reinstate (in whole or in part) any of such obligations which
were suspended.
k. Notwithstanding anything to the contrary herein, if the Employee is
removed or permanently prohibited from participating in the conduct of the
Employer's affairs by an order issued under section 8 (e)(4) or (g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(4) or (g)(1)), all obligations
of the Employer under this Agreement shall terminate as of the effective date of
the order, but any vested rights of the parties hereto shall not be affected.
l. Notwithstanding anything to the contrary herein, if the Employer is
in default (as defined in section 3(x)(1) of the Federal Deposit Insurance Act),
all obligations under this Agreement shall terminate as of the date of default,
but this paragraph 4(1) shall not affect any vested rights of the parties
hereto.
m. Notwithstanding anything to the contrary herein, all obligations
under this Agreement shall be terminated, except to the extent determined that
continuation of this Agreement is necessary for the continued operation of the
Employer, in the following cases:
(a) By the Director of the Office of Thrift Supervision (the "OTS
Director") or his or her designee, at the time the Federal
Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Employer under the authority
contained in 13(c) of the Federal Deposit Insurance Act; or
(b) By the OTS Director or his or her designee, at the time the OTS
Director or his or her designee approves a supervisory merger to
resolve problems related to operation of the Employer or when the
Employer is determined by the OTS Director to be in an unsafe or
unsound condition.
n. Any payments made to the Employee pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
Section 1828(k) and any regulations promulgated thereunder.
o. Notwithstanding anything to the contrary herein, and in accordance
with the OTS Regulatory Bulletin 27a dated March 5, 1993, upon the termination
of the Employee, for any reason, the total amount of compensation that may be
paid to the Employee hereunder shall not exceed three times the Employee's
average annual compensation for the previous five taxable years (except that if
the Employee was not employed by the Employer for five years, the average annual
compensation for the actual number of taxable years the Employee was employed by
the Employer).
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5. Ownership of Work Product. The Employer shall own all Work Product
arising during the course of the Employee's employment (prior, present or
future). For purposes hereof, "Work Product" shall mean all intellectual
property rights, including all Trade Secrets, U.S. and international copyrights,
patentable inventions, and other intellectual property rights, in any
programming, documentation, technology, work of authorship or other work product
that relates to the Employer, its business or its customers and that Employee
conceives, develops, or delivers to the Employer or that otherwise arises out of
the services provided by the Employee to the Employer hereunder, at any time
during his employment, during or outside normal working hours, in or away from
the facilities of the Employer, and whether or not requested by the Employer. If
the Work Product contains any materials, programming or intellectual property
rights that the Employee conceived or developed prior to, and independent of,
the Employee's work for the Employer, the Employee agrees to identify the
pre-existing items to the Employer, and the Employee grants the Employer a
worldwide, unrestricted, royalty-free right, including the right to sublicense
such items. The Employee agrees to take such actions and execute such further
acknowledgments and assignments as the Employer may reasonably request to give
effect to this provision.
6. Protection of Trade Secrets. The Employee agrees to maintain in strict
confidence and except as necessary to perform his duties for the Employer, the
Employee agrees not to use or disclose any Trade Secrets as defined in the Trade
Secrets Act set forth in the South Carolina Code Annotatedss.39-8-1 et. seq., as
may be amended from time to time.
7. Protection of Other Confidential Information. In addition, the Employee
agrees to maintain in strict confidence and, except as necessary to perform his
duties for the Employer, not to use or disclose any Confidential Business
Information of the Employer during his employment and for a period of 24 months
following termination of the Employee's employment. "Confidential Business
Information" shall mean any internal, non-public information (other than Trade
Secrets already addressed above) concerning the Employer's financial position
and results of operations (including revenues, assets, net income, etc.); annual
and long-range business plans; product or service plans; marketing plans and
methods; training, educational and administrative manuals; customer and supplier
information and purchase histories; and employee lists. The provisions of
Sections 6 and 7 above shall also apply to protect Trade Secrets and
Confidential Business Information of third parties provided to the Employer
under an obligation of secrecy.
8. Return of Materials. The Employee shall surrender to the Employer,
promptly upon its request and in any event upon termination of the Employee's
employment, all media, documents, notebooks, computer programs, handbooks, data
files, models, samples, price lists, drawings, customer lists, prospect data, or
other material of any nature whatsoever (in tangible or electronic form) in the
Employee's possession or control, including all copies thereof, relating to the
Employer, its business, or its customers. Upon the request of the Employer,
Employee shall certify in writing compliance with the foregoing requirement.
9. Restrictive Covenants.
a. No Solicitation of Customers. During the Employee's employment with
the Employer and for a period of 24 months thereafter, the Employee shall not
(except on behalf of or with the prior written consent of the Employer), either
directly or indirectly, on the Employee's own behalf or in the service or on
behalf of others, solicit or attempt to solicit Customers to induce or encourage
them to acquire or obtain from anyone other than the Employer or its
subsidiaries any product or service competitive with or substitute for any of
the Employer's Products. For purposes of this Section, "Customer" refers to any
person or group of persons with whom the Employee had direct material contact
with regard to the selling, delivery, or support of the Employer's Products,
including servicing such person's or group's account, during the period of 12
months preceding the solicitation date. The "Employer's Products" refers to the
products and services that the Employer or any of its subsidiaries or affiliates
offered or sold within six months of the solicitation date. This restriction
does not apply after a Change in Control.
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b. No Recruitment of Personnel. During the Employee's employment with
the Employer and for a period of 24 months thereafter, the Employee shall not,
either directly or indirectly, on the Employee's own behalf or in the service or
on behalf of others, solicit or induce any employee of or consultant to the
Employer or any of its subsidiaries or affiliates to leave his or her position
with the Employer (or the subsidiary or affiliate), or recruit or attempt to
recruit such persons to accept employment or any other position with another
business. This restriction does not apply after a Change in Control.
c. Independent Provisions. The provisions in each of the above Sections
9(a) and 9(b) are independent, and the unenforceability of any one provision
shall not affect the enforceability of any other provision.
10. Successors Binding Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the Employer and its successors and assigns.
Neither this Agreement nor any right or interest hereunder shall be assignable
or transferable by the Employee, his beneficiaries or legal representatives,
except by will or by the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Employee's legal personal
representative.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses last given by each party to the other; provided, however, that all
notices to the Employer shall be directed to the attention of the Employer with
a copy to the Secretary of the Employer. All notices and communications shall be
deemed to have been received on the date of delivery thereof.
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with federal law, including, but not limited to, the
rules and regulations of the Office of Thrift Supervision, and to the extent not
governed by federal law, the laws of the State of South Carolina without giving
effect to the conflict of laws principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in State of South Carolina.
13. Non-Waiver. Failure of the Employer to enforce any of the provisions of
this Agreement or any rights with respect thereto shall in no way be considered
to be a waiver of such provisions or rights, or in any way affect the validity
of this Agreement.
14. Enforcement. The Employee agrees that in the event of any breach or
threatened breach by the Employee of any covenant contained in Section 6, 7,
9(a), or 9(b) hereof, the resulting injuries to the Employer would be difficult
or impossible to estimate accurately, even though irreparable injury or damages
would certainly result. Accordingly, an award of legal damages, if without other
relief, would be inadequate to protect the Employer. The Employee, therefore,
agrees that in the event of any such breach, the Employer shall be entitled to
obtain from a court of competent jurisdiction an injunction to restrain the
breach or anticipated breach of any such covenant, and to obtain any other
available legal, equitable, statutory, or contractual relief. Should the
Employer have cause to seek such relief, no bond shall be required from the
Employer, and the Employee shall pay all attorney's fees and court costs which
the Employer may incur to the extent the Employer prevails in its enforcement
action.
15. Saving Clause. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision or clause of this Agreement, or portion thereof, shall be held by any
court or other tribunal of competent jurisdiction to be illegal, void, or
unenforceable in such jurisdiction, the remainder of such provision shall not be
thereby affected and shall be given full effect, without regard to the invalid
portion. It is the intention of the parties that, if any court construes any
provision or clause of this Agreement, or any portion thereof, to be illegal,
void, or unenforceable because of the duration of such provision or the area or
matter covered thereby, such court shall reduce the duration, area, or matter of
such provision, and, in its reduced form, such provision shall then be
enforceable and shall be enforced.
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16. Certain Definitions.
a. "Change in Control" shall mean the occurrence during the Term of any
of the following events, unless such event is a result of a Non-Control
Transaction:
(i) The individuals who, as of the date of this Agreement, are
members of the Board of Directors of the Employer (the "Incumbent
Board") cease for any reason to constitute at least a majority of
the Board of Directors of the Employer; provided, however, that
if the election, or nomination for election by the Employer's
shareholders, of any new director was approved in advance by a
vote of at least a majority of the Incumbent Board, such new
director shall, for purposes of this Agreement, be considered as
a member of the Incumbent Board.
(ii) An acquisition (other than directly from the Employer) of any
voting securities of the Employer (the "Voting Securities") 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)
immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 50% or more of the combined voting power of the
Employer's then outstanding Voting Securities.
(iii)Approval by the shareholders of the Employer and actual
consummation of:
(a) a merger, consolidation or reorganization involving the
Employer;
(b) a complete liquidation or dissolution of the Employer; or
(c) an agreement for the sale or other disposition of all or
substantially all of the assets of the Employer to any
Person (other than a transfer to a subsidiary of the
Employer).
b. "Non-Control Transaction" shall mean a transaction described below:
(i) the shareholders of the Employer, immediately before such merger,
consolidation or reorganization, own, directly or indirectly,
immediately following such merger, consolidation or
reorganization, at least 50% 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; and
(ii) immediately following such merger, consolidation or
reorganization, the number of directors on the board of directors
of the Surviving Corporation who were members of the Incumbent
Board shall at least equal the number of directors who were
affiliated with or appointed by the other party to the merger,
consolidation or reorganization.
17. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Employee has signed and sealed this Agreement, effective as
of the date first above written.
SIGNATURES OMITTED
